In order to apply for divorce in Australia, you’ll need to satisfy certain eligibility requirements before making your divorce application. These requirements are outlined and discussed in our article Divorce Requirements: Eligibility for Divorce in Australia.
The Application for Divorce form
To make a divorce application in Australia, you’ll need to complete an Application for Divorce form. You can fill out this application form online at The Commonwealth Courts Portal. Alternatively, you can download the form from the Federal Circuit Court website, then either type or write out your details manually on the form.
Swearing or affirming the Application for Divorce form
Once you’ve completed the Application for Divorce form, you’ll need to swear or affirm the form in the presence of a lawyer or a Justice of the Peace. An alternative method is swearing or affirming the form in the presence of another person who is authorised to witness your signature on the form.
Who qualifies as an ‘other authorised person’ for witnessing my signature on my divorce application?
As for who qualifies as an ‘other authorised person’ to witness your signature on the Application for Divorce form, this will be governed by the law of the state or territory in which you have your signature witnessed. This is because the relevant oaths and affirmations can vary depending on the state or territory. In light of this, you should check state or territory legislation before choosing a person to witness your signature on the form.
What if I’m overseas at the time when I want the divorce application witnessed?
If you’re overseas, your signature on your Application for Divorce form can be witnessed by a Notary Public, an Australian Diplomatic Officer or Australian Consular Officer, or an Employee of the Australian Trade Commission.
Filing the Application for Divorce form and supporting documents
After you’ve filled out and sworn or affirmed the Application for Divorce form, you’ll need to post or hand deliver the original signed document and any other relevant documents to a Family Law Registry, along with two photocopies of each document. You’ll also need to include a photocopy of your marriage certificate, though this doesn’t need to be sworn or affirmed, or even certified. In addition, in the event that you’ve been married to your partner for less than two years, then you’ll need to provide a counselling certificate when you file for divorce. All of these documents will then be filed at the Family Law Registry.
Does my partner need to agree to the divorce?
It isn’t necessary for the application that your spouse agree to the divorce. That said, your application status would differ depending on whether or not your spouse decides to cooperate with you in relation to the application. Your application status would also differ depending on whether you can actually locate your spouse at the time of making the application. Specifically, you can either file a sole application by yourself, or else you can file a joint application together with your spouse.
Sole applications and joint applications
If your spouse doesn’t cooperate with you in relation to the application, or you can’t find your partner, then you would file a sole application. This would mean that you’d prepare and file the application yourself as a sole applicant, with your spouse as the respondent. Alternatively, you’d make a joint application if your partner agrees to the divorce and cooperates with you in preparing and filing the application. In that event, you and your spouse would be joint applicants.
What happens when you file your application?
When you file your application at the Family Law Registry, you’ll receive a file number from the Court and a time and date for the hearing. If you make a joint application, the Court will hold onto the original document and provide your spouse with a sealed copy. If you make a sole application, you’ll receive both sealed copies, and you’ll need to serve one of these copies on your spouse, along with an information brochure from the Court.
Service requirements to file for divorce
If you file a joint application with your spouse, then there’s no requirement to serve the application on him or her. However, if you file as a sole applicant, then you’re required to serve this application on your spouse, at least 28 days before the hearing if your spouse lives in Australia, or 42 days if they live overseas. You can either serve the application on your spouse by post or else have a third party serve the documents by hand, as you’re not allowed to serve them by hand yourself.
Your spouse’s address is required for service of the application. However, you might be unable to determine your spouse’s address or location. If you can’t locate your spouse, even after taking all reasonable steps to do so, then you can apply for an order to either dispense with service or enable substituted service.
If attending the court hearing in person might be difficult for you, you can request to attend by way of telephone.
To qualify for a reduced filing fee for your divorce application, you’d need to provide certain documentary evidence to the Court. For example, such documentary evidence could be in the form of a certain card that you hold, such as a health care card or a pensioner concession card. This evidence might also demonstrate that you’ve been granted Legal Aid, or you’re in receipt of payments for youth allowance, Austudy or ABSTUDY. In addition, it might show that you’re 18 or under, or a prison inmate, or otherwise in a public institution under legal detention.
The filing fee for a divorce application in the Federal Circuit Court will normally be $865.00. In certain circumstances, you might be eligible for a reduced filing fee, which would be $290.00. In order to qualify for a reduced filing fee when you file for divorce, certain types of documentary evidence would need to be provided to the Court. You’d need to provide this evidence yourself if you’re a sole applicant, while the evidence would need to be provided by both you and your spouse if you’re joint applicants. You might also be able to have the filing fee reduced on the basis of financial hardship.
In the event that your current name differs from your married or maiden name, you’ll need to file an affidavit with the Court that explains this difference.
If there are children of the marriage, then particulars of the arrangements relating to the children must be provided to the Court. Such particulars would include details of housing and arrangements for care, schooling, and the health of the children. In addition, the particulars would include details of the contact to be had with each parent, as well as the reasons for limited or no contact with a parent, if applicable. A further component of the particulars would be the provision of financial support by either parent, in addition to the reasons for non-provision of financial support by a parent, if applicable.
A child of the marriage would include any child of you and your partner, and the definition extends to any child who was born prior to your marriage or following your separation. The definition also includes any child who’s been adopted by you and your spouse, as well as any stepchild or foster child who was a member of your family before the separation.