A Guide to Divorce in Australia in 2023
Divorce is a serious and emotionally draining process, one that is a major cornerstone event in any person’s life.
If you are considering divorce, then it is important to understand the way that the process works, and what the legal requirements are.
Am I eligible to get a divorce?
The first requirement is to demonstrate that your marriage has broken down irreparably and that there is no reasonable possibility that it can be restored. This requires evidence that you and your partner have been separated for at least a year and one day.
There is no need to provide a reason for the divorce, or to show that your partner is at fault, or that you are not at fault. In the vast majority of cases, it is enough to simply state that you have been separated for 12 months.
If you and your partner have been married for less than a two year period, you are also required by law to attend family counselling services. After this requirement has been met you can file for divorce and attach the counselling certificate as part of your application. If your circumstances prevent you from attending these counselling sessions (for example in cases of domestic violence), you can apply to the court to have this requirement revoked.
In addition, to be eligible to get a divorce in Australia you must meet at least one of the following criteria:
- You were born in Australia, and/or
- You are an Australian citizen, or
- You are lawfully residing in Australia and have been doing so for the past 12 months (ie have a valid visa).
Applying to get a divorce
Under Part VI of the Family Law Act 1975, the Federal Circuit and Family Court of Australia (FCFOA) is empowered to deal with marriage breakdowns.
Applications for getting a divorce should be filed online using the Commonwealth Courts Portal online form. This means that you will be able to access your court file and court orders whenever you need to.
You may choose to either prepare your own divorce application or alternatively, you can ask a lawyer to help you with it.
Do I need to file my divorce application solely or jointly?
You can choose to apply for a divorce by yourself (known as a sole application) or with your partner (aka joint application).
The same online application can be used for both sole and joint applications. Depending on whether you choose to apply by yourself or with your partner, there will be different obligations you need to fulfil.
Sole application divorce
Part A Question 1 of the form requires you to select whether you are filing the application solely or jointly. If you choose to make an application by yourself, you will be known as the Applicant and your partner will be known as the Respondent.
As your partner may not be aware that you are initiating a divorce application, you will be required to serve the application on the other party. “Service” is a legal requirement and can be done in person or by post.
If you choose to conduct service by post, the documents you will need to send will include:
- A copy of the Application for divorce
- A Notice of Application for divorce
- A copy of the Affidavit for eFiling
- A copy of the Marriage, families and separation brochure
- An Acknowledgement of Service and a letter asking your partner to sign this form and return it back to you.
All these documents and forms can be found on the Federal Circuit and Family Court of Australia website.
You should only attempt service by post if you are sure that your partner will sign and return the Acknowledgement of Service form back to you. This document is meant to ensure that your spouse has returned the documents and has been notified appropriately of your divorce application.
If your spouse is living in Australia, the divorce documents are required to be served at least 28 days before your court hearing. If your spouse is overseas, the divorce documents must be served at least 42 days before your court hearing. Court attendance will be required if there are children under the age of 18 in your marriage.
If you are unable to locate your spouse there is an option to apply for an order to dispense with the service requirement or instead apply for substituted service. More detailed information on service requirements and its process can be found on the Federal Circuit and Family Court of Australia website.
If you choose to conduct service by hand, it is important to note that you cannot be the person who serves your partner. Instead, you must arrange for a server to serve the documents on your spouse. This person can be a friend, family member or a professional server.
Joint application divorce
Those making a joint application will not be required to serve the other party. Instead, both parties will be known as joint applicants. One party will complete the application and provide a copy to the second party, who can then review and sign the application. The document can then be eFiled online.
Is attendance at Court required?
Court attendance is not required for those submitting a joint application unless parties choose to attend.
Need help with your divorce?
If you need any assistance with your divorce matters or application, please feel free to reach us via the contact form. We are specialists in divorce law, and have a working
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