In this article, we cover everything you need to know in regard to how to get a divorce in Australia.
Making the decision to get divorced can be incredibly difficult. It can involve a lot of emotional turmoil, as everyone involved is grappling with feelings of sadness, guilt, and uncertainty about their future.
The complexity of the decision can also be compounded by the presence of children, financial concerns, and the need to untangle shared assets and debts. Furthermore, the perceived societal stigma attached to divorce can make it even harder for individuals to come to terms with the decision and move forward with the process.
Ultimately, the decision to divorce is a deeply personal one and should be made after careful consideration and ideally with the support of loved ones and professionals such as counsellors, as well as family lawyers like Daykin Family Law.
At Daykin Family Law, we guide you through the maze of divorce & separation and into your bright, new future. We are your trusted advisors in one of the most difficult times in your life. You can rely on our team of dependable, expert family lawyers to provide clear direction and steps towards meeting your goals. Contact us today to find out how we can help.
The types of divorce applications
There are two primary types of divorce applications:
The first type of divorce application is a sole application – as the name implies, this is when one party files for divorce without the other.
If you choose to pursue a sole application, you will be referred to as the applicant and the other party will be known as the respondent. Only the applicant must sign the application, the respondent does not need to. As the applicant, you will be responsible for serving the application on the respondent.
If you have children under the age of 18, you will need to appear in court in order to process a sole application.
A joint application is when both parties decide to file for divorce together.
When filing a joint application, both parties are referred to as joint applicants. One party will generally complete the application and provide a copy for the other party to review and sign. When filing electronically, you will have the option to print the document and provide a copy to the other party for review. If you file a joint application, there is no need to serve documents on the other party.
You do not need to appear in court if you file a joint application.
Ensure your eligibility for divorce
When looking at how get a divorce in Australia, you must first ensure you are eligible and meet the following requirements.
1. Be a resident or citizen of Australia
To be eligible for divorce in Australia you must either
- have Australian citizenship, or
- be lawfully present in Australia for at least the last 12 months and intend to continue living here.
If you fall under the latter category, you will generally need to provide evidence, such as your passport and a valid or current visa, to prove that you have been living in Australia for at least one year.
2. Your marriage must have broken down irretrievably
In Australia, you can only apply for divorce if your relationship has broken down irretrievably.
You must be able to prove that the marriage has broken down, which can be done by providing evidence of the separation, such as a separation agreement or evidence of living apart.
Additionally, it is essential to note that the court must be satisfied that there is no reasonable likelihood of reconciliation between the parties. This means that at least one spouse must regard the marriage as over on the date of separation (and in some way communicated this to the other spouse) and there is no chance of getting back together.
3. You must have been separated for at least 12 months and 1 day
To be eligible for a divorce in Australia, you must have been separated from your partner for at least 12 months and 1 day. Even if you are still living in the same home as your partner, you may still be considered separated, as long as you have been living separately for that time.
4. You’ll need your marriage certificate
If you were married in Australia, you must provide a valid marriage certificate. This certificate can be obtained from the Registry of Births, Deaths and Marriages in your state or territory, or you can use the ceremonial certificate issued at the time of the marriage. If you do not have a marriage certificate, you should contact the Registry of Births Deaths and Marriages in your state or territory to obtain a copy.
If you were married overseas and your marriage certificate is not in English, you will need to have the certificate translated by a NAATI-certified translator and attach both the original certificate and translated document to an Affidavit of Translation of Marriage Certificate. NAATI maintains a directory of certified translators and interpreters. If you are unable to obtain a marriage certificate from overseas, you must provide an affidavit outlining the details of the marriage and the reasons why you are unable to provide the certificate.
How to apply for divorce
The easiest way to apply for a divorce is electronically using the Federal Circuit and Family Law Court of Australia’s online system.
You can submit it electronically through the Commonwealth Courts Portal, which offers secure access to your court file, the ability to file documents electronically, and access to court orders at all times. If you need more info check out the how to apply for divorce PDF from the FCFCOA.
Contact Daykin Family Law today if you need help with your divorce
Daykin Family Law is a reputable and experienced family law firm located in Brisbane. We specialise in handling divorce cases and have a team of experienced lawyers that are knowledgeable in all laws and procedures surrounding divorce.
We can provide legal guidance and representation throughout the entire divorce process, from filing for divorce to finalising the settlement. We can also help with issues related to child custody, property division, and spousal support. Contact us today for assistance with your divorce to ensure the process goes as smoothly and efficiently as possible.