Lexi Webster
To initiate divorce proceedings in Australia, individuals must meet specific eligibility criteria and submit the necessary documents through the Commonwealth Courts Portal. The Federal Circuit and Family Court of Australia oversees divorce applications, with Western Australia maintaining a separate system. Applicants can choose between a sole and joint application, impacting the process and requirements. Divorce orders are accessible through the portal, serving as proof of divorce, with the option to request replacement documents in certain situations.
| Characteristics | Values |
|---|---|
| Application method | Online using the Commonwealth Courts Portal |
| Application type | Sole or joint |
| Requirements | Australian citizen, lawfully living in Australia for at least 12 months, marriage certificate |
| Additional documents | Marriage counselling certificate or affidavit, if married for less than two years |
| Serving documents | Required for sole applications, must be served at least 28 days before the hearing if spouse is in Australia and 42 days if overseas |
| Affidavit | Required for eFiling, must be signed |
| Brochure | "Marriage, Families and Separation" must be downloaded and read by all parties |
| Fee | Filing fee, service fee for record search |
| Proof of divorce | Available as a digital order from the Commonwealth Courts Portal, can be requested from the Federal Circuit and Family Court of Australia |
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What You'll Learn
Eligibility requirements for divorce in Australia
To be eligible for divorce in Australia, several requirements must be met. Firstly, individuals must demonstrate that their marriage has "irretrievably broken down," which is established by being separated for at least 12 months with no likelihood of reconciliation. This can be done while living under the same roof, but specific criteria must be fulfilled, and legal advice should be sought.
Secondly, applicants must satisfy the residency requirements. They must be lawfully present in Australia and intend to continue living there. Evidence of living in Australia for at least the last 12 months must be provided, such as through a passport showing the date of arrival and a valid visa. Those living overseas must provide an address for service in Australia, which can be their spouse's address if both parties file an affidavit explaining their situation.
Thirdly, applicants must provide a copy of their marriage certificate. If the certificate is not in English, an Affidavit translation must be submitted alongside the original. If the marriage certificate is inaccessible or unavailable, an affidavit detailing the circumstances of the marriage and explaining why formal proof is unobtainable must be provided.
Divorce applications can be made individually or jointly with the other party to the marriage. The process can be done online through the Commonwealth Courts Portal, which allows access to the court file and orders 24/7. Alternatively, individuals may seek legal assistance from a lawyer to prepare their application. It is important to note that divorce proceedings do not finalise arrangements regarding children, finances, or property, and separate applications must be filed for these matters.
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Applying for divorce online
To apply for divorce online in Australia, you must first meet the eligibility criteria. You must have been living in Australia for at least the last 12 months and be able to provide evidence, such as a passport showing the date of arrival. If you are living overseas, you may still be eligible to apply if you meet the criteria and provide an address in Australia.
Next, you can begin the online application process. The Federal Circuit and Family Court of Australia has jurisdiction over divorce applications and provides an online form via the Commonwealth Courts Portal. This allows you to access your court file, eFile, and access court orders 24/7. You can prepare your application yourself or seek legal assistance.
The application process involves multiple steps. You will need to select the appropriate court, add a title and description, and complete various parts of the form, saving as you go. You will need to provide information such as your marriage certificate and separation date. After completing the form, you must print and sign the Affidavit for eFiling Application (Divorce) before an authorised witness, such as a Justice of the Peace or lawyer.
If you are making a sole application, you will need to serve a copy of your application and the relevant brochure on your spouse. Additional documents, such as an Affidavit of Service, will need to be filed to prove service. If you are making a joint application, you do not need to serve the application, but both parties must swear the affidavit.
Finally, submit the application and pay the filing fee. You will then select the state and location for your divorce proceedings. A court date will be set, and your application will be considered.
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Joint vs. sole application
In Australia, there are two main ways to file for divorce: a sole divorce application or a joint divorce application.
A sole divorce application is filed by one spouse 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. The person filing the application is responsible for ensuring that the divorce papers are served to the other spouse. This can be done through a process server or substituted service if the spouse cannot be located. It's important to note that filing a sole divorce application does not affect the outcome of the divorce proceedings.
On the other hand, a joint divorce application is made when both parties agree to end the marriage and are willing to work together. In this case, one party completes the application and provides a copy to the other party to review and sign. There is no need to serve documents on the other party in a joint application.
The process for filing a sole divorce application in Australia includes the following steps:
- Complete the application online through the Commonwealth Courts Portal, providing details about your marriage, separation, and any children, as well as uploading important documents like your marriage certificate.
- Submit the application through the Commonwealth Courts Portal and pay the filing fee, which may be reduced in cases of financial hardship.
- Serve the divorce papers to the other spouse.
For a joint divorce application, both parties should file an affidavit, and a third person should also file an affidavit to corroborate the evidence. If there are children under 18 years of age, details of arrangements for housing, care, schooling, health, and financial support must be provided in the application.
Regardless of the type of application, it is important to seek legal advice to ensure that your rights are protected throughout the divorce process.
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Court attendance requirements
Court attendance is not always mandatory in Australia when filing for divorce. If you are making a joint application, you do not need to go to court. Similarly, if you are making a sole application and your children are under 18 but were part of the family before separation, you will not need to go to court if the other party does not object.
However, there are several circumstances in which you will be required to attend court:
- If you are applying for an order for substituted service or a dispensation of service because you cannot find your spouse to serve the court documents.
- If the respondent (your spouse) opposes the divorce application, they must attend the divorce hearing to explain why they wish to oppose it. You should also attend, as if you do not, and the respondent opposes the divorce, the court may treat their response as undefended and dismiss your divorce application.
- If there are children under the age of 18 and the respondent requests to attend the hearing.
- If you lodge a sole application and there are children under the age of 18, or you select that you wish to attend at Q2.
It is also advisable to attend the hearing if you are required to provide additional affidavit material to explain particular circumstances of your relationship that may impact the outcome of your application.
Divorce hearings are conducted electronically by phone.
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Proof of divorce
To obtain proof of divorce in Australia, you must request a search of the Federal Circuit and Family Court of Australia. If your divorce was finalised after 13 February 2010, you can download official proof of divorce (your divorce order) at no cost from the Commonwealth Courts Portal. This proof of divorce is a digital order with an electronic seal and signature and is the only proof of divorce provided by the Courts.
If your divorce was finalised before 13 February 2010 or you were not a party to the divorce, you should complete the online form. This form is also applicable if your documents have been destroyed as a result of a natural disaster. In this case, you can obtain replacement documents at no cost using the Natural Disaster Replacement Document Request Form.
If your divorce was granted in Western Australia, you will need to contact the Family Court of Western Australia to obtain proof of divorce. There is a fee of $30 that includes a search of the court records, printing of the proof of divorce (if found), and postage (including overseas).
To apply for a divorce in Australia, you must meet certain eligibility requirements. You must be an Australian citizen by birth, descent, or grant of citizenship, or have lived in Australia continuously for at least the last 12 months and provide evidence of this (e.g., passport showing the date of arrival). If you apply for divorce within two years of marriage, you must include a certificate from a counsellor indicating that you and your spouse have considered reconciliation or an affidavit explaining why you cannot attend marriage counselling.
The application for divorce can be done online using the Commonwealth Courts Portal. You can prepare your own divorce application or ask a lawyer to do it for you. You can apply by yourself (sole application) or with the other party (joint application). If you are doing a sole application, you must arrange to have the divorce documents served on your spouse at least 28 days before the hearing date in Australia (42 days if overseas). If it is a joint application, you do not need to serve the documents on your spouse.
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Frequently asked questions
Divorce papers in Australia are digital orders with an electronic seal and signature. They are issued by the Federal Circuit and Family Court of Australia.
You can download your divorce order (proof of divorce) from the Commonwealth Courts Portal. You will need to log in and submit an online form. There is no cost to log in and download the document.
If your divorce papers have been destroyed due to a natural disaster, you can obtain replacement documents at no cost by using the Natural Disaster Replacement Document Request Form.
