The process of divorce can be overwhelming. If you are wondering how to apply for a divorce in Australia, there are two ways. You can prepare your own divorce application (a sole application or a joint application) or ask a lawyer to do it for you. At Eliza Legal, we believe in practising law with a heart. We strive to minimise the emotional toll of legal proceedings by offering compassionate and supportive guidance every step of the way.
Are you eligible to apply for a divorce?
To apply for a divorce, at least one party must believe the marriage is over with no prospect of getting back together. You must have been separated for at least 12 months and 1 day. A marriage certificate is required, and if you don't have one, you'll need to get a copy from the Registry of Births, Deaths, and Marriages in the state or territory where you were married to apply for divorce online.
You, or the other party, must answer YES to at least one of the following:
- You were born in Australia or have become an Australian citizen by descent.
- You received an Australian citizenship grant and have a citizenship certificate.
- You have been living in Australia for the last 12 months.
If you were separated but still living together during any part of the 12 months before filing your application, you will need to provide extra evidence of the change in your marriage by preparing and submitting an affidavit to support your Divorce application.
How much will it cost?
The filing fee charged by the Court is currently $1,100, but you may qualify for a reduced fee of $365. See here for reduced fee guidelines.
Do I need to go to court?
You'll only need to attend Court for the divorce hearing if:
- Indicated in your application that you wish to attend, or,
- If either party objects to the divorce being heard without the parties present, or,
- If the respondent opposes the application by filing a Response.
How do I apply for a divorce?
Applications for divorce should be eFiled online using the Commonwealth Courts Portal. This allows you to access your court file, e-file documents, and view court orders 24/7 through the Court's secure website. If you are unable to access eFiling, you can contact the Court, and they will provide you with the necessary forms.
There are two ways to apply for a divorce:
- Sole application – With this application, you are the applicant, and the other party is the respondent. Only you, as the applicant, are required to sign the application. You must, however, have the documents formally ‘served’ upon the other party.
- Joint application – Both parties need to sign the application. Service of the documentation is not required.
What is 'no-fault' divorce?
In Australia, divorce is based on a no-fault system. This means that you do not need to prove that either party is at fault for the breakdown of the marriage. The only requirement is that the marriage has broken down irretrievably, and that you and your spouse have been separated for at least 12 months.
This approach focuses on the facts of the relationship rather than assigning blame, helping to simplify the process and reduce conflict between parties.
What if I'm living overseas?
You can still apply for divorce in Australia even if you’re currently living overseas, provided you meet one of these criteria:
- regard Australia as your home and intend to live in Australia indefinitely
- are an Australian citizen by birth or descent
- are an Australian citizen by grant of citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
If you are an Australian citizen or permanent resident, you must provide a copy of your Australian passport, citizenship certificate, or other proof of your permanent residency. If you are not an Australian citizen or permanent resident but have been living in Australia for at least 12 months before applying, you’ll need to include evidence showing you’ve been resident during that period.
If your spouse is overseas, serving divorce papers can take longer and may require specific steps under international service conventions. It’s best to seek advice from a family lawyer familiar with cross-border divorce matters to ensure everything is handled correctly.
What if I married overseas?
If you were married overseas, you can still apply for a divorce in Australia as long as your marriage is legally valid in the country where it took place and you meet the eligibility requirements for filing in Australia.
You’ll need to provide a copy of your official marriage certificate. If it isn’t written in English, you must also file a translated copy together with an affidavit from the translator confirming its accuracy.
As long as the overseas marriage is recognised as valid under Australian law and you or your spouse meets one of the following criteria, you can apply for divorce in Australia, if you:
- Regard Australia as your home and intend to live here indefinitely
- Are an Australian citizen by birth or descent
- Are an Australian citizen by grant of citizenship, or
- Ordinarily live in Australia and have done so for at least 12 months immediately before filing for divorce.
If you’re unsure whether your overseas marriage is recognised in Australia or what documentation you’ll need to provide, it’s best to seek advice from an experienced family lawyer who can help confirm your eligibility and prepare your application correctly.
Court documents required to file for divorce
- Application for Divorce
- The main document filed with the Federal Circuit and Family Court.
- Can be a joint or sole application
- Marriage Certificate
- A full, official copy is required to prove the marriage.
- If issued overseas, it must be translated into English and accompanied by a translator’s affidavit confirming accuracy.
- Affidavit in Support of Divorce (if required)
- Usually needed for sole applications or where additional information must be provided, e.g., confirming separation period or service.
- Must be signed in the presence of an authorised witness, such as a lawyer, justice of the peace, police officer, or other recognised person under the Evidence Act 1995 (Cth).
- Proof of Service (sole applications only)
- Evidence that the divorce application was served on the other party, including method and date of service.
- Translation Affidavits (if any documents are not in English)
- Must be sworn by the translator confirming the accuracy of the translation.
Are there time limitations for divorce?
The only time limit you need to be aware of for divorce itself in Australia is the 12-month period after the separation date of you and your former partner. You cannot apply for a divorce until the 12 months have passed. If neither party files for divorce, you will remain legally married until divorce proceedings are complete.
There are critical time limits linked to your divorce date, though, which are very important to be aware of if a property settlement needs to take place. Property settlement must be initiated within 12 months of the date of your divorce being granted in Australia. A failure to start property settlement within that timeframe may mean you miss out on dividing property, unless the Court grants an extension.
How is a sole divorce application served?
Once a divorce application has been filed through the Commonwealth Courts Portal, the other party (the respondent) must be formally served with a copy of the application. Serving the documents ensures they are aware of the proceedings and have the opportunity to respond.
Methods of service can include:
- Personal service: This is the most common and reliable method of delivering the documents directly to the respondent in person.
- Post: Sending the documents via registered or certified mail, if allowed by the Court.
- Service to the other party's lawyer: The lawyer is currently acting for the respondent in relation to the divorce or related family law matters. The lawyer is given a copy of all relevant documents, including the divorce application and any supporting affidavits. Proof of service is kept and filed with the Court if required.
- Other methods approved by the Court: In certain circumstances, the Court may approve service by email, courier, or another method, especially if the respondent is overseas.
Key points to be aware of:
- The respondent must be served at least 28 days before the hearing if they are in Australia, or 42 days if they are overseas.
- If the respondent cannot be located, the Court can approve substituted service, such as publishing notice in a newspaper or using an alternative method.
- Proof of service must be filed with the Court to confirm that the respondent received the application.
Proper service is essential for the divorce to proceed. Failing to serve the application correctly can delay the process or even result in its dismissal.
What if the respondent opposes the divorce application?
If the respondent disagrees with the divorce application, they can file a Notice of Appearance and Response to formally oppose it. Common reasons for opposing a divorce application include disputing the separation period or claiming the marriage has not broken down irretrievably.
Once a Response to Divorce is filed:
- The Court may schedule a hearing to resolve the issues.
- Both parties may be asked to provide affidavits or evidence supporting their claims.
- The Court will consider the evidence and decide whether to grant the divorce.
It’s important to seek legal advice if you intend on opposing a divorce application, as the process can become more complex. A family lawyer can help prepare your response, guide you through hearings, and ensure your interests are protected.
What happens after a divorce application is submitted?
When a divorce application is submitted to the Federal Circuit and Family Court of Australia, the Court will review the documents to ensure all requirements have been met. This includes checking eligibility and jurisdiction, and ensuring that the marriage has broken down irretrievably with at least 12 months of separation.
You’ll receive a hearing date, but in most cases you will not need to attend unless there are special circumstances or if the other party opposes the application.
If the application is sole, the person who filed must serve the divorce papers on the other party, giving them formal notice of the proceedings. Once served, the respondent has a set period (depending on where they live) to file a response if they wish to oppose the application.
After the hearing (or once the application is reviewed if no attendance is required), the Court will make a decision. If the divorce is granted, a Divorce Order is issued one month and one day after the hearing date. Only then is the divorce legally finalised.
Parenting matters
If you have children under 18, the Court will need to know that proper arrangements have been made for their care. When separating, many parents begin by creating an informal parenting plan, which can be made before the divorce process begins. This is a flexible, written agreement that outlines how children will spend time with each parent and how major decisions will be made. Parenting plans are not legally binding, but can help reduce conflict in the early stages.
Some parents later formalise these arrangements through consent orders, which are approved by the Court and become legally enforceable. Consent orders provide certainty and protection for both parents and children. If agreement cannot be reached, parents may need to apply to the family law courts to resolve parenting disputes. Courts always consider the child’s best interests, including their safety, wellbeing and ongoing relationship with both parents.
Mediation and family dispute resolution are often required before going to court. These processes give parents the opportunity to negotiate agreements with the help of an independent mediator, helping to narrow issues and focus any necessary court proceedings on the key points of disagreement.
Asset division & property settlement
It's important to understand that obtaining a divorce is a separate legal process from finalising a property settlement. A divorce simply ends the marriage, but it does not resolve financial matters or property division.
Once your divorce is granted, you have 12 months to start your property settlement. If this deadline is missed, you may need to seek the Court's permission to proceed. Property settlements cover the division of assets, liabilities, and financial resources, so it's vital to act within this timeframe to avoid complications down the track.
Child support arrangements
Child support is financial assistance to help meet a child’s everyday needs. In Australia, it is generally calculated based on each parent’s income, the care each parent provides and other relevant factors.
To initiate child support, parents can apply through the Services Australia website (Child Support), which can assess and collect payments. Parents can also make private arrangements, but these should be documented in writing to avoid disputes.
Spousal maintenance
Spousal maintenance is financial support one partner may provide to the other after separation if they cannot adequately support themselves. Applications can be made through the Federal Circuit and Family Court of Australia, and in some cases, interim orders can be sought to provide support while the matter is being resolved.
Courts consider factors such as each partner’s income, earning capacity, financial resources and living expenses. Legal advice is recommended to understand eligibility, entitlements, and how to apply formally.
Estate matters, wills & beneficiaries
Separation or divorce can also affect estate planning and superannuation. It’s essential to review and update your Will, superannuation nominations, and any binding death benefit nominations to ensure they reflect your current circumstances.
Updating your Will and Powers of Attorney is just as crucial as obtaining a Divorce. When significant life changes occur, such as a separation or divorce, it's essential to ensure that your Will reflects your current wishes. Failing to update your Will could result in your estate being distributed in a way that doesn't align with your intentions, potentially leaving out loved ones or leaving assets to an ex-spouse. By creating or updating your Will, you can protect your family's future and ensure your assets are distributed according to your preferences.
Need assistance applying for a divorce?
Applying for a divorce can be stressful and confusing, but a skilled family lawyer can guide you through the process, answer your questions, and help ensure everything is done correctly. At Eliza Legal, a leading family law firm on the Mornington Peninsula, we provide personalised legal support with compassion and integrity.
Let’s see if we’re the right fit for you. Contact us today - we’d love to help you confidently take this important step.
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