An easy 5-step legal guide to the divorce process in Australia

Starting any new chapter in life can be daunting. This is particularly true when it involves divorce. If you’ve never been through the divorce process in Australia before (and most of us won’t have), then understanding the legal ins and outs is key.

By Bill Kordos, Head of Family Law at AFL-Kordos Melbourne.

The more you know, the more smoothly you can navigate the entire process.

This step-by-step legal guide to the divorce process in Australia will equip you with all the information you need and help you prepare for the journey ahead.

 

Understanding the legal landscape for divorce in Australia

Before we can dive into the specifics, we need to understand the overall legal landscape that governs divorce in Australia.

Overview of divorce in Australia

Before the Family Law Act 1975 (the Act) came into effect, getting a divorce was complicated. You couldn’t just decide to end your marriage. You had to provide a concrete legal justification – or grounds – for the divorce. These could include adultery, abandonment, cruelty, habitual intoxication, extended imprisonment or mental instability.

However, today this has all changed, and Australian divorce procedures are much more straightforward.

Grounds for divorce: Today’s no-fault system

In Australia today we have ‘no-fault divorce’. This means that the legal system doesn’t care about or take into account the reason behind any marriage breakdown. 

However, when you get a divorce order, this simply ends your marriage. It doesn’t determine things like how to split the property pool, how financial support will be paid or any parenting arrangements. Those are handled separately, and, in the best case scenarios, outside of the Federal Circuit and Family Court of Australia (the Court) system. 

It is important to note that if you do have Financial Institutions under the age of 18, you will not be granted a divorce until proper arrangements have been made for their care. 

Eligibility criteria for filing a divorce application

There are only a few criteria for filing for a divorce in Australia.

1. You or your spouse have to be Australian residents or live in Australia ordinarily and for the 12 months prior to divorce.
2. You have to demonstrate that the marriage has broken down and there’s no ‘reasonable chance’ that you and your ex-partner will get back together. 
3. You have to be separated for at least 12 months and 1 day. You can be officially separated but still live together. 

Jurisdictional aspects: Federal Circuit and Family Court of Australia

The Court has the jurisdiction to deal with divorce under Part VI of the Act. The Court, however, will generally require parties to attempt to settle their issues through mediation prior to any matters coming through the Court system. 

So while the Court will grant the divorce order when the requirements are met, they will expect you to try to settle all the other matters around your divorce – such as parenting and property matters – privately. 

 

The divorce process in Australia in 5 steps

Since the Act came into effect, divorce has been vastly simplified for Australians. In fact, you can generally understand the process in five easy steps.

1. Separation

There are actually no legal requirements for separation. Separation will occur when at least one partner decides to separate, tells the other person and then acts on that decision. 

The other partner, now ex-partner, doesn’t have to agree. And neither party actually has to leave a shared home. You can be separated and living under one roof.

2. Lodging your divorce application

After you have been separated for 12 months and 1 day you may file your divorce application either jointly with your ex or by yourself. Your divorce application should be eFiled via the Commonwealth Courts Portal. This portal will become your place for documents, as you will be able to access your Court file and any Court orders. 

You are permitted to prepare your divorce application yourself, or you can have your lawyer do it for you. 

Documents needed

• A copy of your marriage certificate. If you were married overseas and your marriage certificate is not in English, you must have it translated and attach copies of the original and the translation to an Affidavit of Translation of Marriage Certificate from the translator.
• Proof of jurisdiction. This demonstrates that you are an Australian citizen, resident or are otherwise permitted to file for divorce in Australia.
• Counselling certificate IF married less than two years. To obtain this certificate, you and your partner will need to attend counselling or file an affidavit that explains why you’re unable to do so.
• Parenting arrangements IF you have Financial Institutions under the age of 18. In this case, you also have to provide particulars around the care for your Financial Institutions. This might include housing, care arrangements, schooling, before and after school care, contact arrangements with parents and financial support.
• An affidavit of eFiling. This must be witnessed by a lawyer or justice of the peace. 

Filing the application

Your divorce application should be eFiled using the Commonwealth Courts Portal. You will need to have all the documents and information set out above, as well as a scanner, printer and a Visa or Mastercard for paying the filing fees. 

If you are not able to eFile for any reason, get in touch with the Court via email. They will be able to give you the correct printed forms and the method for paper filing. 

3. Serve divorce papers

Under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, you are required to serve your divorce papers at least 28 days before any Court hearing. If your spouse lives overseas, the time extends to 42 days. You can skip this step, however, if you have filed a joint application in conjunction with your partner. 

If you’ve filed a sole application, you will need to serve the papers. You can download the forms that are required from the Court’s Divorce Service Kit, if you plan on servicing yourself, and can choose one of two options for serving:

Via post

If you serve via post you will need to provide the following documents:

• a sealed copy of your application for divorce with a Notice of application for divorce attached to the front
• a sealed copy of the eFiling affidavit
• a copy of the Marriage, families and separation brochure
• an Acknowledgment of service (Divorce)
• any other documents filed relating to your divorce application (other than your identification or fee documents).
• a letter asking your ex-partner to sign the Acknowledgment of service and return it to you. If you aren’t confident your ex will do so, you should not file via post. In the letter, you should also ask your spouse to keep the copy of the divorce application.
• a stamped self-addressed envelope for them to return of the signed Acknowledgement of service.

Once the documents have been signed and returned to you, you must complete the Affidavit of service – by post and then attach the signed Acknowledgement of service. You will need to sign Part C before an authorised witness. 

If your spouse doesn’t return a signed Acknowledgement of service to you, you will need to arrange service by hand. If the time limits are getting close, you can ask the Court via email to allow more time.

Via hand

If you want to serve the papers on your ex-partner via hand, you will need to engage another person – who is at least 18 years old – to do this for you. You cannot serve documents on your spouse yourself. 

With this method, you will need to provide the following documents:

• a sealed copy of your application for divorce with a Notice of application for divorce attached to the front
• a sealed copy of the eFiling affidavit
• a copy of the Marriage, families and separation brochure
• an Acknowledgment of service (Divorce)
• any other documents filed relating to your divorce application (other than your identification or fee documents).

If your ex signs the Acknowledgement of service, then the server must complete an Affidavit of service by hand and attach the original Acknowledgement of service to it. They may also need to complete an Affidavit of proving signature and have a witness sign both this document and the Acknowledgement of service.

4. Your divorce hearing

If you and your spouse have filed together for divorce, and you don’t have any Financial Institutions under the age of 18, it’s not usually necessary for either of you to attend the hearing. Instead, the entire process is managed through written submissions. 

However, if the divorce application is made by only one partner, and you have Financial Institutions under the age of 19, then the party who has applied for divorce must attend the hearing. 

At the hearing, the Court will review your application. Once it is satisfied that the marriage has irretrievably broken down (as shown with your 12 months of separation), they will grant the divorce order. 

5. Divorce becomes final

Your divorce order will become final one month and one day after the date of the hearing. You will receive a ‘decree absolute’ in the mail at that time. You are free to marry again once the decree becomes absolute. 

 

Additional considerations on the divorce process in Australia

It’s important to consider the implications your divorce might have on your will, your family trust, your estate planning and your pets. Ensuring you have taken care of all these matters will help you have a smooth divorce process!

 

State-based considerations

Divorce in Australia is handled at the federal level. However, each state may have some additional local support arrangements that could assist you.

• NSW divorce process support
• QLD divorce process support
• WA divorce process support
• Victoria divorce process support
• South Australia divorce support
• Tasmania divorce process support
• NT divorce process support

 

Seeking professional assistance

You can certainly go through the divorce process in Australia on your own. But sometimes that might not be safe or comfortable, and like anything in the legal sphere, it can be challenging to go it alone. From understanding your rights to attending legal hearings to serving papers, having a family lawyer on your side can be invaluable in protecting your rights and getting you the best results.

 

A new chapter is within your grasp

If you’re looking for a fresh start with divorce, our team can help. Our goal is to ensure that you’re as informed as possible so that you can take the best action for your situation.

So if you’re in the midst of divorce or considering divorce and have any questions about the divorce process or procedure in Australia, reach out. You can request a call back via the form below or feel free to call us directly.