How to file a mutual divorce application in Australia: An easy guide

Seen the recent news reports about the introduction of “no-fault” divorce laws overseas?

By Ellen Stubbs, Lawyer at AFL Kordos, Melbourne.

Under the new laws, there is no requirement for one party to prove the other party guilty of adultery, “unreasonable behaviour” or desertion. Prior to these changes, there were reports of couples concocting evidence to show the fault of one of the parties in order to obtain a divorce in circumstances where they both agreed to the divorce.

This might have you wondering what the requirements are to get a divorce in Australia, particularly in circumstances where you and your partner both agree to the divorce. Here, you can also breathe a sigh of relief: Australia also uses a no-fault divorce system.

This article will outline the eligibility requirements for filing a divorce application and how you can do it jointly with your partner in an application for mutual divorce.

Requirements for a divorce application

Regardless of whether you’re applying for a divorce by yourself or jointly with your partner, there are some requirements you’ll need to meet to be eligible for a divorce.

1. Separation

In Australia, you don’t need to show the fault of one party in order to obtain a divorce. This makes the process more straightforward, particularly in circumstances where you’re doing a mutual divorce application.

An application for a divorce order in Australia is based on the ground that the marriage has broken down irretrievably. This will be established where the court is satisfied that the parties have separated and lived separately and apart for a continuous period of more than 12 months before filing the application for divorce.

It’s not unusual for couples to separate and then get back together after separation to try and reconcile, and the law allows some flexibility in this regard. Find more information on trial separation in the same house here. If you separate and then live together again for less than 3 months, then the periods of living separately before and after living together will be treated as one continuous period. This can only occur once.

There are also instances where couples separate but continue to live together in the same home. This has been particularly common over the last couple of years during the COVID-19 pandemic where it was increasingly difficult for a party to move houses during lockdown restrictions. You should seek legal advice if you have separated but are living together in the same home as further evidence is required by the court to prove the separation. If you’re filing a joint application, this includes filing an affidavit from you and your partner with further details about the separation.

2. Time since marriage

An application for divorce cannot be filed within 2 years of the date of your marriage unless you’ve obtained a certificate from a family counsellor stating that you have considered a reconciliation.

3. Right to apply for divorce in Australia

You or your partner must satisfy one of the following:

• Regard Australia as your home and intend to live indefinitely in Australia
• Be an Australian citizen by birth or descent or by grant of Australian citizenship
• Ordinarily live in Australia and have done so for 12 months immediately before filing the application

How to file a mutual divorce application

If you meet the above requirements and you and your partner want to divorce by mutual consent, you can file a joint application for divorce. This means that one party will complete the application for divorce and provide it to the other party to be signed before filing.

1. You can complete the application for divorce via the Commonwealth Courts Portal.

The portal will allow you to complete and file your divorce online and then track the progress of the application. You can register for an account here. You’ll need to provide your marriage certificate and some other documentation may be required depending on your answers in the application.

2. Once you have completed the application via the portal, you’ll be prompted to “lock” the application so that you can print and sign it.

You and your partner will need to have it witnessed by a lawyer or justice of the peace.

3. Once it’s signed, you’ll be able to return to the application on your Commonwealth Courts portal and upload the signed version and file it.

You’ll then be allocated a date for the hearing of the application. If you’re filing a joint application, you don’t need to attend the hearing unless you wish to. You can elect to attend the hearing when completing the divorce application.

4. The divorce order will come into effect and be available to download from the portal 1 month and 1 day after the hearing for the divorce.

It is important to note that there is a time limit of 12 months following the divorce in which to file an application for property orders so you should seek legal advice regarding property settlement before finalising your divorce.

Applying for divorce in circumstances where there has been a mutual separation in marriage is a relatively straightforward process in Australia provided you meet the eligibility requirements. You don’t need to worry about proving the fault of one party which allows you and your partner to end the marriage amicably. The Commonwealth Courts portal makes it easily accessible for most people to complete themselves but there may be some circumstances where you require legal advice.

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