How do I File a Divorce?

Divorce is the legal process undertaken to end a marriage. In Australia, divorce follows the no-fault principle, meaning that the court only considers that the marriage has broken down irretrievably, not the causes that have led to a divorce application. It is important to understand that the granting of a divorce does not automatically resolve financial, property or child custody issues. These must be dealt with separately. A divorce is simply a formal recognition of the dissolution of the marriage.

 

Can I apply for a divorce?

Before you start, there are particular eligibility requirements that need to be met. To start with, you or your spouse must be an Australian citizen, or have been legally residing in Australia for at least 12 months. You and your spouse must have already been separated for more than 12 months before an application for divorce can be filed. If you are separated but living under the same roof, extra documentation will be required to establish a genuine separation. More information can be found <a href=”https://www.legalaid.nsw.gov.au/get-legal-help/factsheets-and-resources/divorce-factsheet-3-separation-under-the-same-roof”>here</a>

If you have been married for less than two years, in most cases you will be required to undertake marriage counselling prior to making a divorce application. In cases where one spouse has experienced violence or abuse, or cannot locate their spouse, the court can be asked for permission to apply for a divorce without seeking any counselling.

If you have any doubts about your eligibility, or think you may have trouble completing the application, it’s best to seek legal advice before starting the process.

Once eligibility has been established, an application can be made solely or jointly. While in many cases, divorces will be made jointly, there are circumstances in which an application will be made solely, such as when one of the parties to the marriage does not cooperate in completing a joint application, or when one of the parties cannot be located. Applications are made online, with a single form for either a sole or joint application, and can be found at the Commonwealth Courts Portal, or the form can be downloaded from the Federal Circuit Court website.

 

What do I need to provide?

To apply for a divorce, you will need your marriage certificate, as well as your citizenship certificate or passport. In some circumstances there may also be extra information or forms required as well.

 

Will I need to attend court?

That depends on the type of application and whether or not there are children of the marriage. For a joint application, attendance at the court hearing is not required, even if there are children. For a sole application, court attendance is only required if there are children under 18.

Where there are children under 18, information about their care, health, schooling and contact with parents will need to be provided in the application

 

What are the costs?

Currently, the cost to file an application for divorce is $910, unless both spouses are eligible for reduced court fees, which require certain concession cards or evidence of genuine financial hardship.

There also may be additional court costs, depending on the application.

There are a number of online resources including several (fact sheets) to assist you if you decide to undertake this process.

 

Article provided by Australian Family Lawyers