If you’re going through a divorce, making decisions that will affect your life can be challenging. As we enter 2024, the process of getting a divorce has changed a bit.
This article applies to all couples, both heterosexual and same-sex, whose marriage is recognised under the Family Law Act 1975. This will help you understand what you must know about divorce applications. Let’s dive in.
Divorce Forms
The divorce forms you must complete for your application are available via the Commonwealth Courts Portal. You can fill these in and submit them on your own or with the assistance of an experienced lawyer.
Seeking legal advice is essential to ensure you complete the forms correctly and provide all of the information the court requires upfront to avoid back and forth and added stress to what is likely an already tricky situation.
Filing Divorce Applications
You must submit your application via the Commonwealth Courts Portal to apply for a divorce. You must register as a user, providing a username and login.
This is the same portal used for all Family Court proceedings, so even if you have existing applications for parenting agreements or childcare consent orders, you must create a new file within the portal to download and complete your divorce application.
You will also need access to a scanner, printer and credit card (Visa or Mastercard) to make payment.
If you need guidance on how to file for a divorce by following easy steps, check our blog here .
Single or Joint Application For Divorce
Under Australian law, you can apply for a divorce either by yourself with a sole application or with your former partner in a joint application. The same form is used in both circumstances. However, there are different obligations in both.
If you wish to file a sole application, you will be identified as the applicant and your former partner as the respondent.
In this case, only you, as the applicant, will be required to sign the Affidavit for filing the divorce papers; however, you will be required to serve documents on the other party (your spouse) as part of the application.
If you file a joint application with your spouse, you will both be identified as the applicants and must sign the Affidavit for the application. One party will complete the application, sign it, and send it to the other party to review and sign.
As divorce applications are completed online in Australia, you can sign and print the application after Step 1 to provide it to the other party for review. Once you have completed the application and finalised it at the end of Step 4, you can print for you and your spouse to sign the Affidavit before eFiling the application online.
If you are considering divorce, feel free to get in touch for a consultation. Andrews Family Lawyers are here to help guide you through the most appropriate process for your circumstances.
Eligibility to File For a Divorce
There are several criteria you and your spouse must adhere to before you can legally apply for a divorce in Australia. The requirements you will need to satisfy are as follows;
- You or your spouse must answer yes to at least one of the following about your right to live in Australia;
- Born in Australia or have become an Australian citizen either by grant of citizenship or descent
- Are lawfully present in Australia, have been living in Australia for at least the last 12 months, and intend to continue living in Australia. A passport showing the arrival date and a valid or current visa must be presented.
- The marriage has broken down, and there is no reasonable likelihood that you will get back together.
- You have been separated for 12 months, and one day or longer
- You have your marriage certificate
Serving of Divorce Papers
Serving divorce papers is notifying the other party of the pending divorce application. Documenting can be done by mail, in person, or by serving the other party’s divorce lawyer.
You must adhere to minimum periods when serving documents to your spouse. If they are in Australia, the documents must be served at least 28 days before the court hearing. The documents must be served 42 days before the court hearing if they are not in Australia.
If you cannot locate your spouse, we can assist you in proceeding. The first step is applying to the court for an order for substituted service. This is when the court allows you to serve the documents to a third party, which the court is satisfied will be able to bring the documents to the attention of your spouse. For example, this could be a friend or family member who is in contact with your spouse.
If you cannot apply for substituted service, we can assist you in applying for an order for dispensation of service.
If you are considering divorce, feel free to get in touch for a consultation. Andrews Family Lawyers are here to help guide you through the most appropriate process for your circumstances.
Do You Need to Go to Court to Get Divorced?
There is only one instance in which you are legally required to present to the court for a divorce application, and that is when you have filed a sole application and there are children under 18 involved.
There are, however, other instances in which you would be advised to attend, including if you are applying for substituted service or dispensation of service or in the case that the court requires more information. More information may be necessary if you have separated but reside in the same residence or have been married for less than two years, for example.
Our experienced lawyers can help guide you and ensure you have all the information submitted for smooth and quick divorce proceedings.
Can I Apply For a Divorce?
If you’re unsure whether or not you can apply for a divorce and have answered yes to the questions in the Eligibility section above, you may need to consider the following.
Can I apply for a divorce if I’ve been married less than two years?
The short answer is yes. However, there are extra steps you must take before you’re eligible to submit your divorce application. Suppose you wish to apply for a divorce and you’ve been married less than two years.
In that case, you are required under Australian law to attend a counselling appointment with a marriage counsellor to discuss the possibility of reconciliation. The counsellor must complete a certificate stating that they have discussed the possibility of reconciliation with you, and you are then required to attach the certificate with your divorce application.
If you do not attend a counselling appointment, you must seek permission from the court to submit a divorce application. Some reasons you may not be able to participate in a counselling meeting include the inability to locate your spouse, with an explanation of your attempts to find them, or if your spouse refuses to attend counselling, and evidence of your attempts to invite them to attend.
If you are unsure how to proceed, contact us, and our experienced lawyers can help with an obligation-free consultation.
How Much Does a Divorce Cost?
To file a divorce application in Australia, there is a fee of $930. You may, however, be eligible for a reduced price of $310. You may qualify for the reduced price if:
- You hold any Department of Human Services or Department of Veterans Affairs cards, including a seniors card, a pensioner concession card, or a health care card;
- You have been granted Legal Aid
- You are receiving Austudy, youth allowance of ABSTUDY;
- You are 18 or under or are an inmate of a prison or otherwise legally detained
You may also apply for a reduction if the full fee will cause you financial hardship. We can assist you in completing this application and providing evidence.
Please note: There are no fees involved in the serving of documents to the other party if this is required as part of your application process; however, legal fees may be needed should you seek the advice of an experienced family lawyer.
If you are considering divorce, feel free to get in touch for a consultation. Andrews Family Lawyers are here to help guide you through the most appropriate process for your circumstances.
How Are Assets Divided in a Divorce?
Filing for divorce under Australian law is simply the separation of the two people in the marriage. It does not finalise arrangements regarding property division, other financial assets, or parenting agreements.
For detailed information on the steps taken to assess the asset pool, consider the contributions made by each party, and the division of assets, read our article on who gets what in divorce.
How Long Does a Divorce Take?
Once a divorce is officially granted, it will be finalised one month and one working day later. Under exceptional circumstances, the court may also be able to shorten this time. Once completed, your divorce order will be available to download and print via the Commonwealth Courts Portal.
It is important to remember that this document will have an electronic seal and signature and will be the only official and original record for evidence of the divorce.
Can You Apply For a Divorce Online?
To apply for a divorce in Australia, you must submit your application via the Commonwealth Courts Portal.
You are required to sign an Affidavit when submitting your divorce application. What is an Affidavit? An Affidavit is a legal statement presenting the facts or evidence surrounding your divorce.
It will need to explain why you and your spouse wish to file for a divorce if you have not attended counselling, the reason for this, and if any particular circumstances apply to your case, such as domestic violence or abuse, and concerns around your safety in attending a counselling session with your spouse.
While submitting your documents is relatively straightforward, there are multiple delicate parts to consider, so having an experienced lawyer on your side is essential.
Conclusion
If you’re going through a divorce, it’s essential to have a clear understanding of the process and a strategic approach. We are here to help you navigate this transition with care. Whether you’re going through this alone or with your partner, we aim to simplify the process and make it less overwhelming.
Contact us for personalised advice and support to help you move forward with confidence and clarity.
