The Divorce Process
Making the very personal decision to divorce can be very difficult for many people. Not all relationship breakdowns must result in divorce and it is important that you are comfortable with the decision you have reached and understand that the decision is yours to make.
At Corney & Lind we aim to guide you through the process one step at a time.
Steps for a Divorce
1. AM I ELIGIBLE FOR A DIVORCE?
A. Connection to Australia
To be eligible, one or both of you must have one of the following jurisdictional connections to Australia:
- Be an Australian citizen; or
- Reside in Australia and consider it your home indefinitely; or
- Have resided in Australia for 12 months prior to applying for your divorce.
You can still apply for a divorce even if you got married overseas, as long as you (or your spouse) meet one of the above criteria.
2. 12 Month Separation
Additionally, you must have been separated from your spouse for a minimum of 12 months. This is required to help prove that there is no reasonable likelihood of resuming married life. Whilst you must prove your marriage cannot be resurrected, it is not necessary to prove someone is at fault.
If you have periods of reconciliation/cohabitation that last longer than 3 months during the 12 month period, the time spent apart prior to reconciling is not considered part of your 12 month separation. If you have decided after a period of reconciliation that lasted longer than 3 months that you still want a divorce, the clock will start running from the time you separate again.
If periods of cohabitation last less than 3 months you may be able to join prior periods of separation and periods after cohabitation together to fulfill the required 12 months separation period.
2. HOW DO I APPLY FOR A DIVORCE?
All you have to do is complete the online Application for Divorce and pay the court filling fee.
- Navigating the Commonwealth Courts Portal
If you are unable to eFile an application, contact the Federal Circuit Court enquiry centre so they can provide you with the appropriate forms. Alternatively, our family law team can walk you through the process and provide the applicable forms and assistance you require.
To electronically file and access court files, you must first register.
- Filing Procedure
You can either apply for the divorce on your own or with the other party to the marriage.
If you are filing on your own:
- You will be known as the applicant and the other party as the respondent;
- The other party does not need to sign the application;
- You will need to serve the application documents to the other party.
If you are filling together:
- You will both be known as joint applicants;
- Ensure both parties have reviewed the application;
- Both parties must sign the application;
- You do not need to serve documents to the other party.
Steps to eFile the application on the Court Portal:
- Select ‘Start a new file’
- Confirm whether you are filing on behalf of yourself or a law firm
- Read the eFiling obligations and confirm your understanding
- Select ‘Application for Divorce’ from the drop down box
- Select the appropriate court in your area
- Add a title/ description to find your file easier
- Start completing the application – make sure you save each page, check each part has a green tick against the heading, upload additional documents where necessary and double check all information
- Once you have locked the document, you are unable to make any more changes
- Print the application and sign the Affidavit for eFiling Application before a lawyer or Justice of the Peace
- Upload the Affidavit for eFiling
- Read the Marriage, Families and Separation brochure
- Submit the application and pay the filing fee
- Select a court date, even if you are not required to attend
- Serve the application if you filed it by yourself
Your application will remain in the system for 90 days then will be deleted for security purposes.
- Court Fees
- You are under financial hardship; or
- You hold a card issued by the Department of Human services 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.
Evidence must be provided if you are eligible for the reduced fee. If you are filing an application on your own, only you need to be eligible. However, if you are filing a joint application, both parties must be eligible.
The fee is payable at the time of filing the application.
- Serving the Application
Service is a requirement to allow the other party to be notified of the pending application they are involved with. You only need to do this if you filed the divorce application on your own.
If your spouse is in Australia, the documents must be served at least 28 days before the court hearing. Otherwise, they must be served 42 days before the court hearing.
You may either:
- Serve the documents via post; or
- Serve the documents via hand; or
- Serve the documents to your spouse’s lawyer.
Documents you will need to provide:
- A sealed copy of the Application for Divorce with the Notice of Application for Divorce attached to the front
- Sealed copy of the Affidavit of eFiling
- An Acknowledgment of Service (Divorce)
- A copy of the Marriage, families and separation brochure
If Serving by Post, Please Note:
- Only serve the documents via post if you are confident they will sign and return the relevant documents.
- A letter should be provided, asking your spouse to sign the Acknowledgement of Service at Part C and return it to you.
- It is good to advise your spouse to keep a copy of the Application sent.
- A stamped self-addressed envelope for the return of the signed Acknowledgement of Service (Divorce) should also be provided
If Serving by Hand, Please Note:
- If you choose to serve the documents via hand, you cannot do it yourself.
- You must arrange for a person over 18 years of age to serve the documents.
- The server can be a friend, family member or professional process server.
- The server must also complete the Affidavit of Service by hand.
- If the server doesn’t know the spouse, they must complete the Affidavit proving signature.
- If the spouse doesn’t sign the Acknowledgement of Service, the server should complete the Affidavit of Service and tick the appropriate box at Part B.
If the lawyer is served, there is no requirement to complete the Affidavit of Service, you only need to upload a signed and dated Acknowledgement of Service.
Once the Acknowledgement of Service has been returned, you must complete it and attach the Affidavit of Service (Divorce). You must sign Part C of the Affidavit of Service before an authorised witness (Justice of the Peace or Solicitor). The same witness must also sign the Annexure note at the bottom of the Acknowledgement of Service.
Once the forms are completed, signed and returned, the forms must be uploaded to the Commonwealth Courts Portal. There are no fees involved in the filing of service documents.
Steps to eFile Service Documents:
- Scan and save the documents to your computer in PDF format
- Select your file from ‘Available Files’
- Under ‘Existing Applications’ select ‘Add Document’
- Select ‘Affidavit of Service’ by hand or post under document type
- Choose and upload your file
3. FURTHER CONSIDERATIONS
Separation Under One Roof
You can be separated whilst living together under the same roof so long as the 12 month minimum separation period is satisfied. Partners can separate and live in the same home from a period of a couple days to a few years.
To prove this, you will need to file affidavits stating all the facts and extra evidence that prove you have been separated while living in the same home.
Some things you will need to prove/ explain:
- Change In sleeping arrangements;
- Reduction in shared activities or family outings;
- Decline in performing household duties for each other;
- Division of finances;
- Why you continued to live in the same home;
- Who you have advised of your separation.
Before a court will grant a divorce, you must satisfy the court that reasonable arrangements have been made for any children of the relationship who are under 18 years of age. This includes issues such as:
- Where the children will live;
- Whether the children have any specific health conditions and how these will be supported;
- Who will be financially responsible for the children;
- Child support assessments/arrangements.
A child of the marriage includes:
- Any child of you and your spouse, including children born before the marriage or after separation; or
- Any child adopted by you and your spouse; or
- Any child who was treated as a member of your family prior to your final separation.
Married Less Than 2 Years
If you have been married for less than 2 years at the date you file your application, you and your spouse are required to attend counselling and obtain the appropriate certificate from the counsellor to accompany your application.
Alternatively, if you cannot attend counseling, you must file an affidavit with your divorce application explaining:
- Why you and your spouse have not attended counseling; and
- Any special circumstances of your case.
Cannot Locate Spouse
If you are having trouble serving your divorce application and cannot locate your spouse after all reasonable steps are taken, you may put their address as ‘unknown’ in the divorce application. However, you will need to upload a further application seeking an order to dispense with service or substituted service.
A substituted service will allow you to serve the documents to a third person who will bring the documents to the attention of your spouse. Alternatively, a dispensation of service means you do not have to serve the court documents, however, this is only granted in exceptional circumstances.
When applying, you will need to explain all the steps you have taken to locate your spouse in an affidavit.
4. WHAT HAPPENS NEXT?
Depending on your circumstances, you may be asked to file further documents. This is done via the Commonwealth Courts Portal.
Court attendance is only required if you choose to come or if you have made a sole application and there are children under the age of 18 years. However, it is advised that you do attend if any of the above further circumstances apply to your situation.
If you are unable to attend court in person, you can request to appear by telephone. To do so, you must fill out the request form which can also be eFiled.
Once the divorce is granted, it will be finalized one month and one day later unless a special order is made to shorten that time. You will be able to access your divorce order through the Commonwealth Courts Portal.
Steps to Find Order:
- Go to ‘Availible Files’, select ‘All’ and choose your file
- Under ‘Additional Options’ select ‘List of orders’
- Select ‘View Orders’
If you are thinking about applying for a divorce, it is best to get legal advice first. Call us on (07) 3252 0011 to make an appointment with one of our experienced family lawyers and we will endeavor to ensure you reach a just and redemptive outcome.