How does divorce work in NSW?

The Australian family law system in Australia operates on a Federal basis. This means that the divorce process is similar between all states and territories.

Whilst this means that the requirements for getting a divorce in NSW are the same as any other Australian state, it is important to note that where an individual lives may impact how a divorce is handled.

Having said that, aspects to the process in Western Australia can differ to how it works across the rest of Australia. This is addressed below.

Making a divorce application

To be eligible to make a divorce application in NSW, an individual must be at least one of the following: 

• An Australian citizen
• Born in Australia
• Lawfully residing in Australia for the past 12 months. 

If the individual meets at least one of the criteria above, it will then be important to prove that the marriage has broken down irretrievably. Australia has a ‘no fault’ approach to divorce, meaning that there is no need for parties to prove to the Court who was at fault for the marriage breakdown.

Instead, the emphasis is that the relationship breakdown is to such an extent that there is no chance of reconciliation. This is normally evidenced by showing the Court that the separating parties have been living independently for more than a year. This is known as the ‘12 month minimum separation period’. 

It is important to note that for couples that have been married for less than a year, there is a legal requirement that both parties attend family counseling services. Parties will prove that they have completed this requirement by producing a counseling certificate to the Court as part of their divorce application. This is known as a s62i certificate.

The difference in the divorce process between NSW and WA

While the divorce process in Australia is governed by federal law, the Western Australia jurisdiction has some slight differences.

In NSW, there is generally a waiting period of one month before a divorce can be granted, while in WA, the waiting period is slightly longer at two months. 

Additionally, the filing fees for a divorce application are slightly higher in NSW than in WA. 

However, the basic steps involved in the divorce process are the same in both states, including filing an application for divorce, attending a court hearing (if required), and obtaining a final divorce order. 

Choosing an appropriate registry

When a divorce application is made, both individuals will generally have to give certain documents to the Federal Circuit and Family Court of Australia. The Family Court has registries around Australia and in NSW. 

The location at which the divorcing individual files their documents will generally be the place at which hearings will take place. This means that it is important to choose a registry that is convenient for both you and your ex partner to commute to. 

If both individuals live long distances away from each other, the need for a shared registry may be bypassed and replaced instead with video hearings online. 

If this is a problem, it is recommended that parties seek legal advice to ensure that the divorce proceedings are not affected.

How much does a divorce cost? 

The cost of filing a divorce application in NSW is approximately $990. It is important to note that this amount may change, depending on the complexity of the divorce and if other delays arise. 

If cost is a big issue for a party, they may choose to book a free consultation with a lawyer, who may then be able to give an accurate cost estimation of how much the divorce will cost. 

Is legal representation needed to get a divorce? 

Whilst getting a lawyer is not essential, it may be extremely helpful, depending on the circumstances of the relationship breakdown. It is important to note that if an individual does not get a lawyer, they will not be able to get legal advice elsewhere. 

Whilst the Court registry is able to help a party with the administrative process of getting a divorce, they cannot give anyone legal advice. 

There are some circumstances which make it more important to seriously consider getting legal advice. 

An example is if an individual’s divorce leads to other legal issues. Examples of other complex legal issues that may arise include: 

• Applications for spousal maintenance
• Parenting orders, or other parenting arrangements
• Applications for child support payments
• Property settlement disputes 
• Making a new will. 

If any of these issues arise, it will be worthwhile considering seeking legal advice for the divorce and for any other legal issues. 

Seeking legal advice from the start of the process could save an individual the time and resources in the long term, especially if legal advice would position the party to be in a better position to argue for important interests, such as spending more time with the kids, or protecting family assets. 

If a party is sure that they do not need legal representation, it is important that they become familiar with the procedures, laws, and requirements for the divorce process. 

It is notable that some firms offer free consultations for first meetings which may be useful for a party who is not sure whether they would like legal representation or not. 

If you need any assistance regarding your divorce application please feel free to reach us via the contact form below.