Untying the Knot: A Step-by-Step Guide on How to Get a Divorce

Family Law: 30 August 2023

Author: Jessica Geraghty - Our People

According to statistics generated from the AIFS, the median age of Australians who divorce has risen, with the average female being 43 years old and the average man being almost 46 years old.

With a rise in conscious uncoupling today, obtaining a Divorce following the required 12 months of separation, has never been more accessible in our no-fault jurisdiction. Under the no fault divorce system, a divorce application can be filed by either spouse without any requirements being necessary as long as certain requirements are met.

In essence, a Divorce is the formal legal event that marks the conclusion of a marriage of two individuals. Separate and distinct from this process, a property settlement involves financial separation between two parties to a marriage and distributing the assets and liabilities of the marriage between them.

A general outline of the process in applying for a Divorce is below:

Eligibility

• You or your spouse must:
  • Regard Australia as your home and intend to live in Australia indefinitely; or
  • You are an Australian citizen; or
  • You usually reside in Australia and have done so for at least 12 months before filing the application.
• You and your spouse must have been separated for at least 12 months. Separated does not necessarily mean living apart. It is certainly possible to be separated while still living under the same roof.

Have you been married to your spouse for less than two years?

If you have been married less than two years, you will need to file a counselling certificate.

Complete the Application

The next step is to fill out the Application for Divorce form, setting out accurate and detailed information in relation to your marriage and children (if applicable). You need to be sure as to whether you are filing the Application on your own, that is a Sole Application or jointly with your spouse being a Joint Application. You are required to sign the Application before an Authorised witness such as a Justice of the Peace or an Australian Lawyer.

Supporting Documents

The following documents, are necessary and required to be filed along with your Application:

• A completed Application for Divorce form.
• A photocopy of your marriage certificate. If you cannot locate your marriage certificate an Affidavit is required to be filed.
• If you've been separated while living under the same roof, you'll need to provide additional evidence in the form of a supporting Affidavit.
• Proof of residency or passport, if you are not an Australian citizen.
• A signed Acknowledgement of Service (if sole Application).
• An Affidavit of Service (if sole Application).
• An Affidavit of E-Filing.

File the Application

You are then required to electronically file a completed application and supporting documents with the Federal Circuit and Family Court of Australia via the Commonwealth Courts Portal.

Serve the Application on Your Spouse

If you are filing a sole Application, you are required to serve a copy of it on your spouse. This is usually done by a process server.

Attending the Hearing (If required)

If you have children under the age of 18 years with your spouse, then you are required to attend a hearing before a Judicial Registrar. If there are any deficiencies in your application and your spouse opposes the divorce, you might also need to attend a further hearing. This is a relevant consideration if you are unable to effect service of your Application for Divorce on your partner prior to the hearing.

The Divorce Order

If the Court is satisfied with your application, a Divorce Order will be made. This usually takes effect one month and one day after the hearing or determination in Chambers.

Costs Involved for Filing an Application for Divorce

At the time of this publication, the filing fee for an Application for Divorce is $990.

You may be eligible for a reduced filing fee if you hold a current government concession card or you can demonstrate financial hardship.

If you're ready to embark on the journey towards legal separation, do not hesitate to reach out to a member of our family law team who can assist you through the process with expertise and care. Contact Aitken Partners on 03 8600 6000.