If you want to apply for a divorce, you will need to fill out an application form online. You can file either a:
– Joint application (you and your spouse mutually agree to get a divorce and complete the form together)
– Sole application (you are filing for divorce on your own and will need to complete the application form by yourself)
In a joint application, one of you is applicant (1) and the other is applicant (2). In a sole application, you are the applicant and your former partner is the respondent.
Before applying, there are some requirements you will need to fulfil. You must meet one of these criteria:
1. You or your spouse must be either…
– Australian born or an Australian citizen by descent (born outside of Australia but a parent is Australian)
2. You or your spouse have become Australian citizens (and have proof of this)
3. You or your spouse live legally in Australia and plan to do so indefinitely. For this, you must have lived in Australia for at least a year already.
In addition, there must be no reasonable likelihood of you and your spouse getting back together, and you must have been separated for at least 12 months and 1 day.
Steps in a Divorce Application
Once you have ensured you are eligible, there is an easy 4 step process to apply for a divorce:
1. Get your supporting documents
Before filling out the application form, it is very important to gather all necessary documents, as you will not be able to complete your Divorce Application without them. These may include a marriage certificate, a change of name certificate, a certificate to say you have received counselling, visa documents, and documents to prove you have an Australian citizenship (eg. passport)
The exact documents you are required to give is dependent on your individual situation.
You may also need to prepare an affidavit. This is a written statement in which you confirm that what you are writing is the truth. This is considered when the Court is deciding whether or not to grant you a divorce.
You will need to produce an Affidavit if:
– You cannot locate a copy of your marriage certificate
– You and your spouse lived in the same property during your separation period (of at least 12 months 1 day)
– You have been married for less than 2 years and have not attempted counselling
– You have a surname that is different from your maiden or married name
– You cannot locate your spouse
In a joint application, both parties have to prepare an Affidavit.
2. Complete an Application for a Divorce
All Applications for Divorce are to be filled out online through the Commonwealth Courts Portal. You may need to print this.
NOTE: To file an Application for Divorce for same-sex couples, you must contact the Family Law National Enquiry Centre. If you would like help with this or additional information, get in contact with us via the contact form.
3. Pay the filing fee
An Application for Divorce also requires a filing fee to be paid of $940. However, you may be eligible for a reduced fee, in which case the payable amount is $310.
There are 2 types of fee-reduction applications you can make:
– General (you may be eligible for this if you have a government concession card such as a health care card, have been granted legal aid, receive youth allowance, are under 18, or are in prison.)
– Financial hardships (if you are not eligible for a fee reduction you may apply for this)
NOTE: fee reductions do not extend beyond the Court fees. If you would like an approximation of how much you would have to pay in total, get in contact with us via the contact form.
4. Serve your application to your spouse
If you are making a Sole Application, you will need to serve your application to your spouse. In other words, you must attempt to notify your spouse of the application as it involves them. if you do not serve your spouse, the Court may dismiss your application. You must serve your spouse a minimum of 28 days before your hearing if they are in Australia, or 42 days if they are overseas.
If you cannot locate or serve your spouse, you must make a request to the court for either:
– A substituted serve (which allows you to serve them in an alternative way)
– A dispensation of service (which allows you to proceed without serving them)
If your spouse is in prison, you must follow the required specialised rules to ensure your application is heard by the Court. If you would like assistance with this, get in contact with us via the contact form.
NOTE: Serving your spouse is not required if you have filed a joint application.
Do you need to go to Court?
Not everyone has to go to Court for a divorce hearing. It is only required if:
– You have filed a sole application and have a child under 18
– You said in your application that you wanted to attend an in person hearing
– The respondent (your spouse) files a Response to divorce opposing the application (in the case that you file a sole application)
You should also attend in person if you are requesting an order for substituted service or a dispensation service in the event that you cannot serve your spouse (as discussed above). It is also suggested to attend if you have to provide an Affidavit to explain circumstances or provide evidence (as discussed above).
Other than these exceptions, all divorce hearings are held electronically. It is important to have all necessary documents, including a copy of your application.
Finalising your divorce application:
Once your divorce application has been granted, it will be finalised after a month unless the Court says otherwise.
NOTE: You can log into the Commonwealth Courts Portal and choose to receive a notification email when your divorce has been granted. You may download your divorce order the day after it has become final.
If you need help with either the divorce application, or with the steps that come afterwards, then contact our friendly divorce lawyers today.
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