Obtaining a divorce is the legal end to a marriage. The divorce process is relatively straightforward, and many people choose not to engage a lawyer to assist them with their divorce but rather, follow a ‘do it yourself divorce’ approach.

There is no requirement in Australia (legal or otherwise) to engage a lawyer when applying for a divorce. However, due to the complexities of many family law matters, it is a good idea to see a lawyer after separation, to understand how your divorce will impact on other family law matters such as parenting arrangements and property settlements.

Do-it-yourself divorce

You can apply for a divorce online using the Federal Circuit Court’s online Divorce Kit. A court filing fee is payable at the time of filing your application.

Filing for divorce

You can fill out the interactive online form using the Commonwealth Courts Portal and pay your filing fee at this time.

Currently, it costs $930 to file for a divorce ($310 if you are eligible for a reduced fee – for example, having a health care card). You have the choice of filing solely by yourself or jointly with your ex-spouse. Whether you file by yourself or with your ex-spouse, the filing fee remains the same.

Joint or sole application

To file a joint application means that both you and your spouse are joint applicants. You both fill out and sign the application before officially filing it with the court. You do not have to ‘serve’ the documents on the other party if you file jointly, as both you and the other party already know and agree to the contents of the application.

If you file a sole application, you are known as the applicant and the other party is known as the respondent. Only you are required to sign the application. The respondent does not need to sign the application, but you are required to ‘serve’ the filed documents on them.

Serving divorce papers

To ‘serve’ documents on your spouse means to give the court documents to them according to the court rules. You are required to serve these documents on your ex-partner so they are aware that you have filed for divorce.

To effect service correctly, according to the court rules, requires you to serve specific documents in a prescribed time frame in a certain way. You can view a step-by-step guide to serving divorce papers in Australia on the court’s YouTube channel.

Effecting service properly according to the relevant court rules can be complicated. If you are unsure of the correct process or just do not want to have to deal with it, you should talk to a lawyer to plan your next steps.

Do I need to go to court?

Sole applications with no children

If you file sole a sole application and there are no children of the marriage, you are not required to attend court for your divorce hearing. You can elect to attend court if you would prefer.

Sole applications with children

If you file sole a sole application and there are children of the marriage under the age of 18, you are required to attend court for your divorce hearing.

Joint applications

If you file a joint application you are not required to attend court for your divorce hearing. You can elect to attend court if you would prefer.

If you are concerned about having to attend court, it is a good idea to engage a lawyer so that they can attend with you. They can make sure you have representation at court so that you do not have to speak at the hearing if you do not want to.

What does getting a divorce mean?

Applying for divorce means just that – applying to no longer be married to your former partner. It means you are no longer legally married to your ex-spouse and allows you to legally get married to someone else.

It is important to note that the granting of a Divorce Order has flow-on effects (some with time limitations) that you should discuss with a lawyer before applying for a divorce.

The granting of a Divorce Order does not:

• resolve parenting matters;
• resolve property settlement;
• automatically amend or override Wills or Powers of Attorney; and
• amend or override any insurance policies.

If you have any questions or concerns about any of these issues, it is important that you engage a lawyer to fully understand your rights and responsibilities.

Am I eligible to get a divorce?

There is no longer a requirement in Australia to give a reason as to why you want a divorce. This requirement was abolished in 1975 with the establishment of ‘no-fault divorce’.

This means that parties do not need to show (and the court will not ask about) which partner (if any) was at fault in causing the marriage breakdown.

The only ground for divorce is that the relationship has ‘irretrievably broken down’, meaning there is no realistic chance of you and your ex-partner getting back together. This can be proven to the court by demonstrating that you and your partner have been separated for 12 months.

If you are concerned about being able to show that your marriage has irretrievably broken down, you should discuss these concerns with a lawyer to find out what information the Court needs to be able to grant you a divorce.

Additional considerations

There are certain eligibility requirements and considerations you need to address when applying for a divorce.  

These include:

• The length of the marriage
  You and your partner must have been married for at least 2 years before you can apply for a divorce. If you have been married for less than 2 years, you will need to file a counselling certificate to be eligible to apply for divorce.
• Being separated but living ‘under the same roof’
  If you and your partner were separated but still living together for any part of the twelve (12) months prior to filing your application, you will need to provide the court with more information by filing an Affidavit.
• Children’s matters
  If you have children, you will need to address the living arrangements of your children in your application for divorce. This can be tricky, especially if the separation is new and you are unsure of how you will resolve any outstanding parenting matters.
• Knowing where your ex-partner is located
  If you do not know where your ex-partner lives or you foresee difficulty in contacting them, you will need to file a further application seeking to get a divorce without ‘serving’ your ex-partner.

If you are not sure whether you meet these eligibility requirements or have not properly considered certain aspects of the above, you should get legal advice before applying for a divorce.

How a family lawyer can help

Getting a divorce can be stressful, and a lawyer can help take a lot of the confusion and bureaucracy out of the process.

Get in touch with one of our family lawyers for a free initial discussion to find out what your options are.

Contacting Smith Family Law

📞 03 8625 8957

📧 [email protected]