Divorce in Australia
The No Fault Principal Divorce in Australia follows the no fault
principal, which was established by the Family Law Act 1975. This means that the court does
not need to know the reason for the divorce, just that the marriage has broken down irretrievably.
When can I apply for a divorce in Australia? To apply for divorce in Australia, you and
your spouse must have separated at least 12 months ago. In addition, one of you must be
an Australian citizen, or must regard Australia as their home and be living in Australia.
If you have been married for less than two years you will also have to participate in
counselling to discuss the possibility of reconciliation, prior to making the divorce
application. How do I apply for a divorce in Australia?
You can apply for a divorce in Australia by filing an application online, or by completing
the necessary forms and posting them to a Family Law Registry for filing. You will need
to send: • an Application for Divorce form which
has been signed and sworn or affirmed by a lawyer, Justice of the Peace, or an accepted
witness. You must include the original document and two photocopies.
• a photocopy of your marriage certificate. This does not need to be sworn, affirmed or
certified. • all other documents you think might be
relevant to your application, such as a certificate of your citizenship or a photocopy of your
visa. You should include three copies of each document in your application.
Can I apply for a divorce as the sole applicant? If the divorce application is made by you
alone as a sole applicant, you will have to serve a copy of the application on the other
party. You, the applicant, will have to provide evidence to the court that the application
has been served and received by the other party. This is normally done by filing an
Affidavit of Service with the Court. The other party may then file a Response to
Divorce if they disagree with any of the information provided on the application or if they oppose
the divorce. There are very few opportunities to oppose the divorce unless the parties have
not been separated for 12 months or if the court does not have jurisdiction.
If the other party does not oppose the divorce then they do not have to attend the hearing.
You, the applicant, will also not have to attend the hearing if there are no children
under 18 and you have filed the Affidavit of Service providing evidence that the application
has been served. Difficulties with service
If you do not know the location of your ex-spouse or have difficulty serving the divorce application,
you will have to apply to the court through your divorce lawyer for substituted service
or dispensation of service. Substituted service allows you to serve the
divorce application on a family member who has contact with your ex-spouse or at their
place of work. The dispensation of service is granted only in specific circumstances
as it means that a divorce will be granted without the other party being made aware that
the hearing is taking place. If you were married overseas and now live
in Australia, you can still apply for divorce in Australia. You must supply a copy of the
marriage certificate along with an English translation, if applicable. Either you or
your ex-spouse must be an Australian citizen, or one of you must have resided in Australia
for longer than 12 months and intend to live here permanently.
How long until the divorce is granted? The divorce is normally granted one month
and one day after the hearing. If you are planning on remarrying you should
wait until the divorce has been granted before making preparations. Not all divorces are
finalised at the first hearing. In some situations the court will require further proof of the
date of separation, or that adequate arrangements have been made for any children under the
age of 18. Will the divorce resolve my children and property
issues too? The granting of a divorce does not deal with
issues about property or make formal parenting orders. These must be dealt with separately
to the divorce application. Decisions about property and custody issues
can be done any time after separation and up to 12 months after the divorce has been
granted. What to do next
If you or someone you know wishes to apply for a divorce, or has been served with an
application for divorce, it is important to obtain legal advice as soon as possible.
Go To Court Lawyers operate a Legal Hotline on 1300 636 846 where you can talk directly
to a lawyer from 24 hours, 7 days a week. Your call will be treated with the strictest
confidentiality and without judgement. The lawyer will assess your matter and recommend
a course of action. Should you need a Court lawyer, even at very
short notice, the Legal Hotline staff will be able to arrange one for you. You can also
request a call back via the website www.gotocourt.com.au and a lawyer will call you back to assess
your matter.
