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To apply for a divorce in Australia, you must meet certain requirements. You need to have been separated for at least 12 months, and you or your spouse must ordinarily live in Australia and have done so for at least 12 months before the divorce application. If you were married overseas, you can apply for a divorce in Australia if either you or your spouse regard Australia as your home and intend to live there indefinitely. You will need to provide a copy of your marriage certificate and other documents depending on your circumstances. You can apply for a divorce jointly with your spouse or on your own. The application can be made online, and there is a filing fee.
| Characteristics | Values |
|---|---|
| Who can apply? | An Australian citizen, an Australian citizen by descent, an Australian citizen by grant of Australian citizenship, or a non-citizen who has been living in Australia for at least 12 months |
| Separation period | At least 12 months |
| Marital period | If married for less than two years, counselling is required |
| Living situation | Must ordinarily live in Australia, or provide an address for service in Australia |
| Marriage certificate | Required, unless in exceptional circumstances |
| Translation | If the marriage certificate is not in English, an English translation and an affidavit from the translator are required |
| Application type | Joint or sole application |
| Application method | Electronically filed (eFile) |
| Application fee | Required |
| Court hearing | Required in most cases |
| Court response | The court may not make an order at the first hearing and may require more information |
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What You'll Learn
Eligibility criteria for applying for divorce in Australia
To be eligible to apply for a divorce in Australia, you must meet the following criteria:
Residency requirements
You must be an Australian citizen or permanent resident. If you are not an Australian citizen, you must have been living in Australia for at least the last 12 months and intend to continue living in Australia. Evidence of your arrival date, such as a passport, and a valid or current visa, must be provided.
Marriage requirements
You and your spouse must have been separated for at least 12 months before applying for a divorce. If you have been married for less than two years, you must file a counselling certificate. If you are separated but living in the same home, you will need to prove to the court that you were separated during this time.
Documentation requirements
You must provide the court with a copy of your marriage certificate. If you were married overseas, your marriage certificate must be translated into English, and an affidavit from the translator must be filed. If you do not have your marriage certificate, you must obtain a copy from the relevant authority where the marriage took place.
Application requirements
You must serve the application on the respondent. If you are making a joint application, both parties must provide an Australian address. If you are living overseas, you must provide an Australian address for service.
It is important to note that the Court will only consider an application for divorce without a marriage certificate in very exceptional circumstances. Additionally, divorce proceedings do not finalise any arrangements regarding children and finances, and separate applications must be filed for these matters.
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Separation requirements
To apply for a divorce in Australia, you must first meet certain separation requirements. This means that you and your spouse must have lived separately for at least 12 months before you can file for divorce. The 12-month period begins after the date of separation, which is typically the date that one party moves out of the shared household with no intention of returning.
It is important to note that you can still be considered separated even if you and your spouse are living under the same roof. In these situations, additional evidence will be required to prove that the separation has taken place, such as a change in the nature of your relationship, separate financial arrangements, or no longer sharing a bedroom.
During the 12-month separation period, it is recommended that you try to finalise as many practical aspects of your divorce as possible. This includes organising care arrangements for any children, dividing your property and finances, and coming to an agreement on spousal maintenance if applicable. Seeking legal advice and exploring alternative dispute resolution options, such as mediation, can also help facilitate these discussions and ensure that your separation is as amicable and efficient as possible.
If you have children under the age of 18, you will need to demonstrate to the court that proper arrangements have been made for their care. This includes deciding on issues such as living arrangements, education, and financial support. The court may require additional information or evidence regarding these arrangements, especially if there are any concerns about the children's welfare. It is important to prioritise the best interests of your children throughout the divorce process and seek professional support if needed.
Once the 12-month separation period has been completed, you can then file for divorce. However, it's important to be mindful of the timing as there are strict time limits that apply. You have only two years from the date of your final separation to file a divorce application, so prompt action is advised. If you miss this window, you may need to provide additional explanations and evidence to the court justifying your delay. Therefore, it is generally advisable to initiate the divorce process as soon as you are eligible to ensure a smoother and more timely outcome.
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Required documents
To apply for a divorce in Australia, you will need to provide certain documents to the Federal Circuit and Family Court of Australia. If you are located in Western Australia, you should contact the Family Court of Western Australia as divorces in this state are only filed there.
Firstly, you will need to provide a copy of your marriage certificate. If you were married in Australia, you can obtain a copy from the Registry of Births, Deaths and Marriages in the state or territory in which the marriage took place. If your marriage was conducted overseas, you should try to obtain a copy from the relevant authority in the country where the marriage took place. If your marriage certificate is not in English, you will need to submit an English translation of it, along with an affidavit from the translator.
If you have been married for less than two years, you will need to file a counselling certificate. To obtain this, you will need to attend counselling with your spouse. If you are unable to attend counselling, you will need to file an Affidavit – Family Law and Child Support.
If you are filing the application on your own (a sole application), you will need to arrange for your spouse to be served a copy of the application, along with the Marriage, Families and Separation brochure. The person serving the application will need to complete an Affidavit of Service, and you will need to provide additional documents to prove that the application has been served on and received by your spouse. If you are making a joint application, you do not need to serve the application.
If you are living overseas, you may still be eligible to apply for a divorce in Australia, as long as you or your spouse meet the eligibility criteria. If you are eligible, you must provide an address in Australia. If you are lodging a joint application, both parties must provide an Australian address. This can be the address of a family member or friend who is willing to pass on any served documents to this address.
If you are not an Australian citizen or permanent resident, but have been living in Australia for at least 12 months before applying for a divorce, you will need to provide evidence of your residency. This can be done by uploading a copy of your Visa Entitlement Verification Online check.
If you have been separated for more than 12 months but were living under the same roof for some or all of that time, you can still apply for a divorce. However, you will need to provide additional documents to prove that you were separated during this time.
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Court selection
To apply for a divorce in Australia, you must submit an Application for Divorce to the Federal Circuit and Family Court of Australia. If you are located in Western Australia, you should contact the Family Court of Western Australia, where divorces in Western Australia are filed.
You can apply for a divorce in Australia if you or your spouse meet the eligibility criteria. If neither you nor your spouse meets the criteria, you will not be able to apply for a divorce in Australia and you should make inquiries with the relevant authorities in the country where you are situated.
If you are eligible to apply for a divorce in Australia but are overseas, you must provide an address in Australia at question 10 of the application. If you are lodging a joint application, both parties must provide an address in Australia. This address can be the address of a family member or friend who is willing to pass on any served documents to this address. You can enter your overseas address at question 9.
If you have been married for less than two years, you will need to file a counselling certificate. To obtain a certificate, you will need to attend counselling. To arrange counselling, contact the Family Relationships Advice Line (FRAL). If you are unable to attend counselling with your spouse, or there are special circumstances as to why you have not attended counselling, you will need to file an Affidavit – Family Law and Child Support.
You must have been separated from your spouse for at least 12 months before applying for a divorce. It is possible to be ''separated under one roof' if certain criteria are met. If this applies to your situation, you need to prove to the Court that you were separated during this time, even though you were living in the same home.
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Joint vs sole application
In Australia, there are two primary ways to file for divorce: a joint application or a sole application. A joint application is when both parties agree to end the marriage and work together to file for divorce. This approach often leads to a quicker and less stressful process as it streamlines the procedure by removing the need to serve documents to the other party or wait for their response. It also means that neither party needs to attend a court hearing.
On the other hand, a sole application is when one party decides to apply for a divorce without the involvement or agreement of the other spouse. This type of application is common when the other party is unwilling to cooperate or cannot be reached. In a sole application, the applicant is responsible for serving the divorce papers to the respondent, who then has the opportunity to file a response. If the divorce is a sole application and there are children under the age of 18, attendance at court is required.
Regardless of which option is chosen, it is important to seek legal advice to ensure that rights are protected and the process is handled properly.
To apply for a divorce in Australia, there are several key steps. Firstly, the applicant must complete the application form, providing details about the marriage, separation, and any children involved, as well as uploading important documents such as the marriage certificate. If the marriage certificate is not in English, an English translation and an affidavit from the translator must be provided. Secondly, the applicant must submit the application through the Commonwealth Courts Portal and pay the filing fee. Finally, the divorce papers must be served to the other party, who will have to sign an Acknowledgement of Service form. Both parties will then need to sign additional forms before the hearing, which will be set two to three months from the date of filing the application.
It is important to note that there are certain criteria that must be met to be eligible to apply for a divorce in Australia. These include having been separated for at least 12 months, having been living in Australia for at least the last 12 months, and being an Australian citizen, a permanent resident, or having an intention to continue living in Australia.
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Frequently asked questions
To apply for a divorce in Australia, you must meet the following requirements:
- You must have been separated for at least 12 months.
- You must provide a copy of your marriage certificate.
- You must be an Australian citizen or permanent resident, or have lived in Australia for at least 12 months before applying for divorce.
- If you are making a sole application, you must arrange to have the divorce documents served on your spouse.
The documents you need to apply for a divorce in Australia include:
- A copy of your marriage certificate.
- Proof of Australian citizenship or permanent residency, such as an Australian passport or citizenship certificate.
- If you are not an Australian citizen or permanent resident, evidence of residence in Australia for the past 12 months, such as a Visa Entitlement Verification Online check.
- If you are filing a sole application, you must arrange to serve the application on your spouse and complete an Affidavit of Service.
To apply for a divorce in Australia, you can follow these steps:
- Complete the online interactive form on the eCourts Portal.
- Print and sign a copy of your completed application and a blank Affidavit for eFiling Application (Divorce).
- File your application with the Federal Circuit and Family Court of Australia, or the Family Court of Western Australia if you are located in Western Australia.
- Pay the filing fee for your divorce application.
Yes, you can apply for a divorce in Australia even if you got married overseas. However, you must meet certain eligibility criteria, such as regarding Australia as your home and intending to live indefinitely in Australia. Additionally, you must provide a copy of your marriage certificate, and if it is not in English, you must file an English translation along with an affidavit from the translator.
