Damon Mcknight
If you are considering filing for divorce in Western Australia, you can do so by making a sole application (on your own) or a joint application (together with your spouse). The Federal Circuit and Family Court of Australia has jurisdiction over the dissolution of marriage, and you can apply for divorce online through the eCourts Portal of WA. Before applying, you must meet the residency requirements, and if you have been married for less than two years, you will need to attend counselling and file a certificate or seek permission from the court to proceed without it. Additionally, you must be separated for at least 12 months and provide the date of separation on your application. It's important to note that divorce proceedings do not finalise arrangements regarding children, finances, or property, and separate applications must be made for these matters.
| Characteristics | Values |
|---|---|
| Who can apply for divorce? | One person alone or jointly with their spouse |
| Where to apply for divorce? | Family Court of Western Australia |
| Application method | Electronically file (eFile) an application for divorce using the Commonwealth Courts Portal or eCourts Portal of WA |
| Application fee | Yes |
| Mandatory separation period | 12 months |
| Mandatory counselling | If the marriage is less than two years old |
| Mandatory children's arrangements | Yes, for children under 18 |
| Property arrangements | No |
| Proof of service | Yes |
| Response to divorce | Spouse may file a response if they oppose the divorce |
| Divorce order | Issued by the court if the marriage has broken down irretrievably and there is no chance of reconciliation |
| Certificate of Divorce Absolute | Issued by the court after the divorce is finalised |
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What You'll Learn
Residency requirements
To file for divorce in Western Australia, you must meet the residency requirements. This means that either you or your spouse must meet one of the following criteria:
- Regard Australia as your permanent home and intend to live there indefinitely.
- Be an Australian citizen by birth or descent.
- Be an Australian citizen by grant of Australian citizenship.
- Have lived in Australia for at least 12 months immediately before filing for divorce.
If you are relying on citizenship or valid visa entitlements to meet the residency requirement, you will need to provide a copy of your passport, including the relevant information such as a date of arrival at least one year prior or a valid current visa. If your marriage certificate is not in English, you will also need to file an English translation of it, along with an affidavit from the translator.
The process of lodging a divorce application in Western Australia is slightly different from the rest of the country. You will need to register on the eCourts Portal of Western Australia and select the Family Court of WA in the Assisted Lodgment box. After selecting 'Divorce' and 'Start Application', you can begin your application. Once the application is completed, you will need to save it and then save a zip file of the documents to your computer. You will also need to print the completed application as well as a blank Affidavit for eFiling Application (Divorce).
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Application process
To apply for divorce in Western Australia, you must meet the residency requirements. You can apply for a divorce by yourself (a sole application) or together with your spouse (a joint application).
If you have been married for less than two years, you must attend counselling with a family counsellor and file a counselling certificate or get permission from the court to apply for a divorce without the certificate. If you cannot attend counselling, you must file an affidavit explaining why and seeking the court's permission to proceed.
You must have been separated from your spouse for at least one year and one day before applying for a divorce. You do not need to be physically separated from your spouse for the whole 12 months. The court recognises a 'separation under one roof', where spouses continue to live at the same address but lead separate lives. In this case, you will need to file a sworn statement (an 'affidavit') explaining why you consider the date of separation to be the 'date of separation'.
If you are filing a sole application, you must arrange to serve a copy of your application and the Marriage, Families and Separation brochure on your spouse. If your spouse is unlikely to sign the form to acknowledge receipt of the divorce documents, you can serve them 'by hand'. This involves getting a private process server or someone you know who is over the age of 18 to personally deliver the documents to your spouse. The person serving the documents will need to sign an 'Affidavit of Service', which you must file with the court.
If you are making a joint application, you do not need to serve the application to your spouse. However, you will need to provide an affidavit from an independent third party, yourself, and your spouse. Both applicants must sign the application.
After filing and serving your application, your spouse may file a 'Response to Divorce' if they oppose the divorce. There are very few valid reasons to oppose a divorce. After your spouse has responded, the court will consider your application.
You will need to pay a fee when applying for a divorce. If you are in Western Australia, you should contact the Family Court of Western Australia, as divorces in this state are only filed there. You can apply for a divorce online through the eCourts Portal of WA or the Commonwealth Courts Portal.
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Separation requirements
To file for divorce in Western Australia, you must meet certain separation requirements. Firstly, you must demonstrate that your marriage has "irretrievably broken down" and that there is no likelihood of reconciliation. This is typically done by showing that you and your spouse have been separated for at least 12 months before filing the divorce application. The 12-month separation period can be lived "under the same roof" as long as you live your lives separately and apart from each other. In this case, you will need to provide a sworn statement or an 'affidavit' explaining why you consider the date you chose to be the 'date of separation'.
If you have been married for less than two years, you and your spouse are required to attend counselling to discuss the possibility of reconciling. You must obtain a certificate of attendance from a professional counsellor and submit it to the court before they will grant a divorce. If counselling is not possible, you must file an affidavit with the court seeking permission to apply for a divorce without the certificate. In your affidavit, you need to explain why you and your spouse were unable to attend counselling.
Additionally, at least one spouse must regard the marriage as over and communicate this to the other spouse. This information is required in the divorce application. If you are applying solely, you should avoid referring to the intentions of your spouse unless you have further information about their perspective at the time.
It is important to note that the divorce application process in Western Australia can be done online through the eCourts Portal of WA or the Commonwealth Courts Portal. You can apply for a divorce by yourself (sole application) or together with your spouse (joint application). There is a filing fee associated with divorce applications.
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Counselling requirements
If you have been married for less than two years, you must attend counselling with a family counsellor and obtain a counselling certificate or get permission from the court to apply for a divorce without the certificate. This is known as reconciliation counselling and is designed to discuss whether there is any possibility of reconciling. Your counsellor must be a professional who is able to issue an Attendance at Counselling Certificate. The Court needs this certificate before it will grant you a divorce.
If you cannot attend counselling, you must file an affidavit seeking the Court’s permission to apply for a divorce. In your affidavit, you need to explain why you and your spouse haven’t attended counselling. If your spouse has refused to attend, you should outline your attempts to invite them.
If you have children under the age of 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for their day-to-day care, maintenance, and other aspects of their welfare. Note that the granting of a divorce does not make these arrangements into a court order or determine the parenting arrangements. If you want a court order about the care arrangements for your children, you will need to make a separate parenting application.
A range of services is available to help work out whether you can reconcile with your spouse. For more information about the Family Counselling services available, visit the Family Relationships Online website, where you can search online for services.
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Court orders and fees
To apply for a divorce in Western Australia, you need to apply to the Family Court of Western Australia. You can apply for a divorce by yourself (a 'sole application') or together with your spouse (a 'joint application'). The application can be made online through the eCourts Portal of WA or the Commonwealth Courts Portal. There is a filing fee for divorce applications, which can be paid using a Mastercard or Visa credit/debit card. If you do not have a credit/debit card, you can buy a prepaid debit card from various retail outlets for a nominal fee. If you are eligible for a reduced fee or are applying for a reduced fee due to financial hardship, you can apply electronically.
If you are making a joint application, you need an affidavit from an independent third party, as well as an affidavit from yourself and another from your spouse. If you are making a sole application, you will need two affidavits – one from yourself and another from a third party. An affidavit is a written and sworn statement that can be used as evidence in court.
If you cannot attend counselling, you must file an affidavit seeking the Court's permission to apply for a divorce. In your affidavit, you need to explain why you and your spouse did not attend counselling, including any attempts made to invite them if your spouse refused to attend. If you cannot find your spouse, explain how you tried to locate them. You must also include any special circumstances of your case, such as a history of violence or abuse in the marriage.
If there are no issues with serving the documents on your spouse, your divorce will be finalised one month and one day after the court date specified on your Form 3. The Court will then issue a Certificate of Divorce Absolute, which confirms that you are free to remarry.
If you are unable to locate your spouse, you can put their address as 'unknown'. You will need to upload a further application seeking an order to dispense with service or for substituted service. If your name is different from your married name or maiden name, you will need to file an affidavit explaining the difference in names.
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