Married couples can apply for a divorce in Australia if the marriage has broken down irretrievably. Couples must have been separated for at least 12 months and one of the parties:
- must regard Australia as their home and intend to live in Australia indefinitely; or
- be an Australian citizen by birth, descent or by grant of Australian citizenship; or
- live in Australia and have done so for 12 months immediately before filing for divorce.
In this article, we look at the steps involved when you are applying for a divorce in Australia.
Step 1 - Separating
In Australia, you must have been separated for at least 12 months prior to applying for your divorce.
If you and your spouse have separated but remained living under the same roof for any period (or are currently living under the one roof), or if you have been married for less than two years, you should first seek legal advice as there are additional requirements that you must meet.
Step 2 - Preparing your application
You can apply for the divorce by yourself or you can make the Application jointly with your former spouse.
Either way, you will need to complete an Application for Divorce form which is fairly straight forward and can be downloaded from the Federal Circuit Court of Australia website, which also has a lot of useful information about applying for a divorce and how to complete the Application. When you file your Application, you will be charged a Court filing fee. The Application for Divorce can also be completed online at www.comcourts.gov.au.
Your lawyer will be able to assist you if you have any questions about completing the Application for Divorce.
Step 3 - Your hearing
You must attend your divorce hearing where:
- you made the Application for divorce yourself; and/or
- where you and your former spouse have children who are under 18 years of age.
If you do not have children under 18, or if you and your former spouse made a joint Application for divorce, you can both choose not to attend your divorce hearing.
What happens at the hearing?
Your matter will be one of many divorce Applications being heard by the Court that day. When you arrive, tell the Court officer your name and they will note your attendance. You then take a seat in the Court room and the Court officer will call your name when your matter is to be heard. Your lawyer can attend the hearing on your behalf if you wish.
Divorce hearings are generally quite brief. During your hearing, the Registrar may ask you questions about the information in your Application or about the service of the Application, if relevant. Where young children are involved, the Registrar may ask about arrangements for the children, such as which parent they live with, how often they spend time with the other parent and how they are financially supported.
Step 4 - Your outcome
If the Registrar is satisfied that the grounds for divorce have been established and that the Application has been properly served on the other party (if your Application was not made jointly), the Court will grant the divorce.
The divorce order will become final one month and one day from the date of the hearing, at which time a Divorce Order will be sent to you and your former spouse (if they have provided their address).
It is possible to act on your own behalf when applying for a divorce, however many people find that they do not have the time to devote to this process.