Process

Once you have been separated for 12 months, you can lodge your application for divorce. Once you have been separated for 12 months, you can lodge your application for divorce.

This is now done entirely online and you will need the following:

• a copy of your marriage certificate;
• a copy of any pensioner or concession card, if you are entitled to one;
• if you have been living together for any period of the separation, you will need to lodge 2 affidavits (including your own) attesting to the fact of your separation;
• if you cannot locate your marriage certificate or obtain another copy, you will need to lodge an affidavit along with the application setting out the details of the marriage – date, time and place etc;
• if you are an Australian by grant of citizenship, a copy of your citizenship certificate;
• in the event that the marriage was outside of Australia and your marriage certificate is not in English, you will need to obtain a translated copy and lodge that with the application.

If you lodge a sole application, then you have to personally serve a copy on the other party. This involves an additional cost of obtaining a process server so, unless there are good reasons not to, for the most part it is generally easier to lodge the application as a joint application. Also, if you have children under 18 years of age and the application is a sole application, you have to attend court for the divorce hearing, whereas if you make a joint application, no court appearance is required. 

The Court will consider the documents on the date of the divorce hearing and if satisfied, make a divorce Order. The Order will become final 1 month and 1 day later.

Criteria

Divorce is a separate legal process to property settlement. A party can be divorced without doing a property settlement and a property settlement can be done without parties being divorced. The only real way in which they are linked is that the Family Law Act 1975 (Cth) requires that a party intending to file an application for property settlement must file within 12 months of the date of the divorce order being granted. Of course, leave can be granted to a party to file outside that period, but this creates an additional hurdle for a party which can easily be avoided.

So, once you have been separated for 12 months, you can lodge an application for divorce. This can be done as a sole application or a joint application with your ex-spouse.

When the divorce application is filed, the following grounds must be met before the court will grant the divorce order:

• Jurisdiction – that is, that Australia has the power or ‘jurisdiction’ to deal with your matter. It must be shown that there is some link to Australia which would make it appropriate for a divorce order to be granted in this country. In many cases, this is easily satisfied by one or both of the parties being Australia citizens, or being married or living in Australia. However, even if none of those elements are met, in some cases, the court will grant a divorce order even if those some or all of those criteria are not met;
• Proof the marriage existed – before the court will grant a divorce order, it must be satisfied that there was a valid legal marriage. This is proved by the production of your marriage certificate. In the case of overseas marriages, where the marriage certificate is in a language other than English, a translated copy will usually suffice;
• Separation – just like you must show there was a valid legal marriage, you must show there has been a valid legal separation. As noted in [link to our page on the ground of divorce] there is only one ground for divorce – that is, that the marriage has irretrievable broken down. This is proved by 12 months separation – this is a necessity and cannot be waived; and
• Service – if you intend to lodge the divorce application as a sole application, it must be shown that the application has been “served” on the other party, i.e. they must be aware that divorce proceedings have been commenced and they have had the opportunity to respond before the matter is determined.
• Appropriate arrangements for children – if there are children of the marriage, the court must be satisfied that there are appropriate arrangements made for their care before a divorce order will issue. In practice, this requires you to set out the times that the children live with each of the parents or otherwise note that there are ongoing proceedings relating to their care.