The relationship between you and your spouse is over. You’ve lost all the hope of getting back together. You’ve tried to reconcile but the marriage just doesn’t work out anymore and you want a divorce. So, how to get divorced in Australia? This article answers this question.
Requirements to Get Divorced in Australia
If you and your spouse decide to separate, it’s important to understand the divorce requirements for commencing the proceedings. A party can apply for a divorce application in a sole application or in a joint application. To apply for a divorce in Australia, you must meet the following requirements:
- you must be in a legal marriage,
- your marriage must have broken down irretrievably,
- you and your spouse must separate for at least 12 months,
- you or your spouse must be an Australian citizen or have been living in Australia for at least the last 12 months prior to filing, and
- you and your spouse must make appropriate arrangements for the care of any child of your relationship, if relevant.
In addition, if you married overseas, you can apply for a divorce in Australia as long as you meet the requirements above. However, there may be delays in the process, especially if one spouse lives overseas.
How to Get Divorced in Australia: Guide
The steps on how to get divorced in Australia generally include the following:
1. Preparing the necessary documents
Couples seeking a divorce should prepare a divorce application at the Federal Circuit and Family Court of Australia (FCFCOA). Couples also need to provide necessary documents or supporting documents such as the marriage certificate, tax returns, bank statements, counselling certificate, mortgage documents, family trusts, and retirement account statements. You can view a divorce checklist here.
2. Signing before a qualified witness
After drafting a divorce application, couples need to sign the application in front of a witness. Most divorcing couples sign their application before a Justice of Peace. Couples should also swear an oath or make an affirmation of truth. This certifies that everything in the divorce application is factual and credible.
3. Filing the divorce papers to the Court
Couples will then need to photocopy the divorce application along with any supporting documents. Essentially, divorcing couples will need to pay court filing fees when submitting these documents. You can find current 2023 filing fees here.
4. Attending the divorce hearing
After filing the divorce papers to Court, the Court will process these documents and set a court hearing date. The Court grants the divorce at the hearing, however, one must not assume that Courts will automatically grant the divorce. For instance, at the first court hearing, the Court may require you to provide more information.
5. Issuance of the Divorce Order
Finally, the Court issues a divorce order, which becomes official one month and one day after the court hearing date. For the Court to approve a divorce, you must satisfy the following requirements:
- you have provided a valid marriage certificate,
- your marriage has irretrievably broken down,
- you have lived separately for 12 months and a day,
- any children of the marriage have been adequately provided for in terms of care and financial support,
- you are eligible to apply for divorce within Australian jurisdiction,
- you have communicated to the other party of the intention to divorce, and
- if the marriage has lasted for less than two years, you have participated in prescribed marriage counselling.
Can I Get a Quick Divorce?
No, divorcing couples can only file an application for divorce after a year of separation, i.e. after a separation period of 12 months. The 12-month period begins on the day one or both parties leave the marriage. You can get back together for up to three months without re-starting the 12-month separation period. However, the time you spend back together will not count as part of the separation period.
How to Get Divorced in Australia: Do I Have to Provide Reasons?
No, Australia has a no-fault divorce system. This means that you do not need to provide divorce reasons or grounds for you to file for a divorce. When granting a divorce, the Court does not consider financial hardship or other reasons why the marriage ended.
The only ground for divorce in Australia is the irretrievable breakdown of marriage. This means that all that the marriage broke down and there was no reasonable chance of getting back together. It does not matter who was at fault or if both or just one party wants a divorce.
What if My Marriage Was Short?
For short marriages, if you and the other party were in a marriage for less than two years you cannot apply for divorce unless you:
- provide a certificate from a counsellor, stating that you have both attended marriage counselling and considered getting back together; or
- ask the Court for permission for the hearing of your application to go ahead even though you have not attended marriage counselling and considered getting back together.
The Court only grants permission to proceed without a certificate if you can provide evidence (through an affidavit) that there are special reasons why you have not attended counselling. Special reasons include not knowing the whereabouts of the other party, the latter refusing to attend counselling, or it is not appropriate to do so due to family violence or family violence orders.
How to Get Divorced in Australia with Children Involved?
If there are children in the marriage, Section 55A of the Family Law Act 1975 provides that the Court must feel that proper arrangements ensure the “care, welfare and development of children” before granting a divorce.
Parties to a divorce must provide details such as where and whom the children will live with, how often they see or communicate with the other parent, and financial agreements for the children to satisfy the Court that there has been preparation and proper arrangements.
When Can I Remarry?
Section 59 of the Family Law Act 1975 states if a divorce order in relation to a marriage has taken effect, a party to the marriage may marry again. A divorce order takes effect one month and one day after the grant of divorce.
After such a period, it is safe for a person to remarry. Do not remarry during divorce proceedings or before your divorce becomes final. To do so constitutes bigamy and renders your second marriage void (not legal and binding).
Divorce Expenses: How Much Will It Cost Me?
The cost of a divorce in NSW, Australia can vary depending on a number of factors, including:
- Whether you and your ex-partner can agree on the terms of your divorce, or if you need to go to court.
- Whether you have children and need to make arrangements for their custody and support.
The minimum cost of a divorce in NSW is the government filing fee, which is currently $990. If you are eligible for a concession, you can pay a reduced fee of $330.
If you cannot agree on the terms of your divorce, you may need to go to court. This will involve additional legal fees, which can be significant. The average cost of litigation can be anywhere between $50,000 and $100,000 or more.
Here is a breakdown of the estimated costs of a divorce in NSW, Australia:
- Government filing fee: $990 (or $330 if you are eligible for a concession)
- Legal fees: $50,000 – $100,000 or more (if you go to court)
- Other costs: e.g., valuations, mediation fees, parenting report fees
Can I Avail of the Reduced Fee for the Application?
You are entitled to a reduced fee if:
- you are the primary cardholder (not a dependant of a primary cardholder) of a health care card, pensioner concession card, Commonwealth seniors health card or any other card certifying entitlement to a concession issued by Services Australia, or the Department of Veterans’ Affairs, or
- you have been granted Legal Aid, or
- you are receiving youth allowance, Austudy or ABSTUDY payments, or
- you are under the age of 18, or
- you are an inmate of a prison or otherwise legally detained in a public institution.
Ask a Family Lawyer How To Get Divorced in Australia
This article provides general steps on how to get divorced in Australia, but there may be more things to do to ensure that your divorce application gets approved. Applying for a divorce under Australian law may involve various steps.
JB Solicitors has a team of experienced lawyers in Family Law that can help with your application. We can assist you in drafting the divorce application before the Court, guide you in the divorce settlement (watch video below) process, and serve as your legal counsel in the court proceedings.
Do you have more queries? Contact us today.
