If you have separated and wish to legally end your marriage in Australia, you need to apply to the Federal Circuit Court (‘the Court’) for a Divorce Order. You can only do so if you have been separated for at least 12 months.
The effect of a divorce order is that two parties who were married are no longer married. The divorce process does not decide issues about property division, parenting arrangements or child support. You must make separate applications for parenting and/or property orders or child support. There are time limits to commence property proceedings after a Divorce Order is made.
How do I obtain a Divorce Order?
To successfully obtain a Divorce Order, you must file an Application for Divorce and prove to the Court:
1.You and your partner were validly married.
This is demonstrated by the production of your marriage certificate (or a translated copy if it is not in English). If you do not have your marriage certificate, you can order a certified copy from the Registry of Births, Deaths & Marriages.
If your marriage certificate is not in English, you will need to have your marriage certificate translated into English by a certified translator.
2. Your marriage has “irretrievably” broken down and you will not be reconciling.
3.You were separated for 12 months before the date you filed your application for divorce.
The Court considers that you and your partner have separated from the day you decide your marriage is over and you communicated this to your partner.
This does not necessarily mean the day you (or your partner) move out of the home. You may be able to get a divorce if you and your spouse have separated but still live in the same house for financial or other reasons.
For there to be a separation, there should be communication of the fact from one party to the other, and some action to confirm that intention. In cases where a party moves out of the matrimonial home it may be said that the move is both communicated and acted upon, depending on the circumstances. When parties remain living under the one roof, however, the court will need to be satisfied that there has been an intention to separate by at least one person followed by a communication of that intention with some form of action following the communication to confirm the intention.
4. You are one of the following:
- An Australian citizen;
- A permanent resident; or
- You were living in Australia for 12 months before the date you filed your Application for Divorce.
5. That proper arrangements in all the circumstances have been made for the care, welfare and development of any child of the marriage (under the age of 18 years of age).
This is demonstrated by providing to the Court a brief overview of each parties’ time and communication with the child, financial support provided by each party, the child’s health, and education.
Is there anything else I need to consider?
You should consider the following issues when deciding whether (and when) to apply for divorce:
- Once your divorce becomes final, you must apply to court within 12 months if you require a property settlement or spousal maintenance. Generally, it is better to implement a property settlement first or at the same time as applying for a divorce.
- Once your divorce becomes final, certain terms in your respective Wills and Powers of Attorney will be automatically voided (whether you wish or not).
- Any appointment of you as an executor of your partner’s estate or as your partner’s power of attorney will also be voided. The same applies to such gifts/bequeathment and appointments in your Will or Power of Attorney.
- The current filing fee for an Application for Divorce in the Federal Circuit Court of Australia is $930. If you cannot afford this filing fee, you can apply for a reduced fee by filing a Reduction of Fees (Financial Hardship) application. The Court will consider whether a reduced fee is appropriate, based on your personal circumstances.
- You may make an application for divorce either jointly with your partner or individually on your own behalf.
- If you file a sole Application for Divorce:-
- You will be required to serve a hard copy of the application on your partner and then provide evidence to the Court that the other party has received the application.
- If you have children under the age of 18 years, you (or your legal representative) will be required to attend Court to satisfy the Court that proper arrangements have been made for each child.
- You will be required to pay 100% of the filing fee.
7. If you file a sole Application for Divorce:
- You do not need to serve a hard copy of the Application for Divorce on your partner.
- You are not required to attend the Divorce Hearing (even if you have children under the age of 18 years).
- You can agree to share the costs of the filing fee equally.
- If you have been married for less than 2 years, you need to see a Family Counsellor to discuss the possibility of reconciliation before you can apply for divorce.
- When the Court makes the Divorce Order it is known as a Decree Nisi. The Divorce Order becomes a final order, one (1) month and one day later and is known as a Decree Absolute.
If you would like any assistance with the above or would like to retain us to prepare your Application for Divorce, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in Divorce and can assist. Please contact us on (02) 9929 8840.
Rebekah Dorter | Principal
Maeve Cooper | Solicitor
This post is an overview only and should not be considered as legal advice. If there are any matters that you would like us to advise you on, then please contact us.