How To Get A Divorce
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How To Get A Divorce in Australia
The requirements to get a divorce in Australia are that you have been married for at least 2 years and separated for at least 12 months. If this applies to you, then you are eligible to get a divorce in Australia.
If you want to get a divorce in Australia, you may prepare your own divorce application or ask a divorce lawyer to do it for you.
We explain the process of how to get a divorce in Australia in 5 easy steps:
Step 1 – You will need proof of Marriage. This is normally done with a marriage certificate. If it is in another language then you will need to change it to English, however, if you don’t have a marriage certificate then our family law experts can assist you in getting one.
Step 2 – Prepare your online application. You can prepare your divorce application online through the comcourts portal which will guide you through the questions that require answering.
Step 3 – Submit the application online. You will then lock your application and pay the filing fee.
Step 4. Notify your ex-spouse – Once you have completed your application, you must ensure that your ex-spouse is notified about the proceedings. If your ex-spouse agrees to the divorce and is happy to sign the application, then you can prepare and file a joint application. This means that you will both need to sign the divorce application. If your ex-spouse does not agree to get divorced or does not know about it, you must serve your divorce application on your ex-partner. You must give it to your ex-partner at least 28 days prior to the divorce hearing. If they live overseas, you need to allow for 42 days.
Step 5 – Check if you need to go to court. you may or may not need to attend court based on your circumstances. If the application is a sole application and there are children under the age of 18, then you will need to attend court. Otherwise, you won’t need to attend court.
Sole Divorce Application Process
A sole divorce application in Australia means that only one spouse is initiating the process to end the marriage. The applicant prepares and files the divorce application online through the Commonwealth Courts Portal. A crucial difference in the sole application process is that the divorce papers must be officially “served” to the other spouse (the respondent). This service is typically carried out by a third party, such as a process server or a friend or relative, to ensure proof of delivery and avoid potential conflict of interest that could arise if the applicant served the papers directly.
Joint Divorce Application
A joint divorce application in Australia means that both spouses have reached a mutual agreement to dissolve their marriage. To initiate this process, the couple must demonstrate that their marriage has irretrievably broken down, which is evidenced by living separately and apart for at least 12 months. The application is filed online through the Commonwealth Courts Portal. With a joint application, there is no need to formally serve divorce papers on either spouse. The court primarily focuses on ensuring the appropriate arrangements are in place for any children of the marriage.
Divorce Case Studies
How to get a divorce in Australia – Scenario 1
John and Lisa are married and have children. They have decided to divorce.
After being separated for 12 months John and Lisa decide that they want to make a joint application for their divorce.
They are able to do this online. Because they have made a joint application, and have no children, they do not need to attend court.
How to get a divorce in Australia – Scenario 2
Paul and Jane are married and have children. They have decided to divorce.
After being separated for 12 months Paul wants to divorce Lisa however Lisa does not want to talk to Paul and is not communicating with him. They have one child together who is under 18.
Paul files for a sole divorce application.
He needs to organise a process server to serve Lisa as it is a sole application, and he needs to attend court as there is a child under 18.
How to get a divorce in Australia – Scenario 3
Francis and Laila are married and have no children. They have decided to divorce.
They were married overseas in Thailand and Laila has now relocated to live back in the USA.
Francis is in Australia and is a permenant resdient and decides to apply to get a divorce.
Francis has a copy of the marriage certificate and files it with a translated copy.
He then files an application in a case to serve the divorce application on Laila by Facebook. He then proceeds to serve her via Facebook and provides evidence of this to court.
Learn what steps you can take next
How to get a divorce in Australia without going to court
For those people who want to know how to get a divorce in Australia without going to court, you probably will be relieved to hear that it is possible. As of 2022, divorce hearings are done online, meaning that you will not need to physically attend a
court. Most cases in Australia do not require you to attend a divorce hearing for your divorce to proceed. If there is no child of the marriage aged under 18 years, you do not need to attend the hearing. If you have made a joint application,
you and your spouse do not need to attend the hearing. If you have made a sole application and there is a child of the marriage aged under 18 years, you need to attend the hearing unless there are special circumstances.
If your ex-spouse has, in their Response to Divorce, opposed the application, they must appear at the hearing. A child of the marriage includes:
- any child of you and your spouse, including children born before the marriage or after separation
- any child adopted by you and your spouse, or
- any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.
If you do need to attend court, you can attend by yourself or with your lawyer. Be prepared and ready to present your case on the day of your court hearing. Do as much research as possible and gather all the information for your case. Make sure you have
all your documents clearly organised and mark the documents that have already been filed with the Court. It’s a good idea to bring a notepad and pen with you in case any orders are made by the court. Some people find it helpful to sit in a courtroom before
the hearing if they have never been in a court before. Most court hearings are heard in open court so you can do this anytime. There are no strict rules about what you should wear in court, however, the court is a formal place and you should try and wear
a suit or something that shows your respect towards the court. Make sure that you check that you are attending the correct court. Many people make the mistake of thinking that the Family Court handles divorce applications when it is actually the Federal
Circuit Court that handles them.
After you filed for divorce, the next step on how to get a divorce in Australia will be that you will receive a hearing date that will be about 8 weeks from the point of filing. First of all, you must make sure that the application for a divorce must
be given (served) to the other party at least 28 days before the hearing date. You can do this yourself or organise a professional company or lawyer to do this for you. Once this is done, the court will grant a ‘decree nisi’, meaning that the marriage will end on a proposed date. The proposed date is 1 month and 1 day after the decree nisi was granted. This will be the date that your divorce is finalised.
As of June 2022, the cost to get a divorce is currently $990. The fee goes up every year.
You can apply for a fee exemption if you are experiencing financial difficulty.
The Family Court may accept your application if you can demonstrate that you are suffering from financial hardship.
You will not be able to lodge your divorce application without paying the application fee.
The application fee must be paid at the beginning of the divorce process.
The process of how long it takes to get a divorce is roughly 3 or 4 months from start to finish.
Filling out your application form can be done in a day. From that time, you will need to lodge your application at the Federal Circuit Registry or online through the Comcourts portal.
Once you have submitted your application form, it can take approximately 3 months until your divorce is finalised.
After the form is processed the court will send you a copy of the court stamped document which you will need to prove that you are legally divorced. This completes the divorce process.
Divorce is the legal process under Australian Family Law for bringing an end to a marriage. It does not deal with arrangements for children or the division of property
You are able to complete this application yourself, however, due to the number of steps, we recommend that you engage a lawyer to do it on your behalf.
If you engage a lawyer to do your divorce they will charge you a fee for processing the paperwork.
You should always make sure that the law firm doing your divorce quotes you or offers you a fixed fee before you agree on anything.
Be aware that making a mistake in your divorce application will mean extensive delays in the whole process.
When people ask how to get a divorce, it often means that they want a quick divorce so they can move on with their lives.
The divorce process does not have to take years or even months.
You could finalise it by requesting the court to make an accelerated application for divorce due to extenuating circumstances.
This may be because of some urgent event, or that you want to remarry urgently.
A contested divorce is one where the parties cannot agree on some or all issues.
An uncontested divorce, however, takes a lot less time because you agree with your spouse about the main issues around the divorce.
‘How do I get a divorce if my ex won’t sign?’ is a question we hear regularly.
You are still able to get a divorce if your spouse does not sign the divorce documents.
This is called a sole divorce application, and as long as you have followed the requirements for a divorce, it does not matter whether or not your spouse signs the divorce application in Australia.
If you are located overseas, you may want to know if you are still able to get a divorce in Australia.
As long as you satisfy the jurisdictional requirements for getting a divorce in Australia, then you will still be able to apply.
Applications are done online and you will need to organise the application to be signed by your spouse or for the divorce application to be served on your spouse.
You can also get a divorce in Australia if married overseas.