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Procedure for Obtaining a Divorce

You can apply for a divorce by yourself (sole application) or together with the other party to the marriage (joint application). The same online application is used for both sole and joint applications. This article outlines the matters that must be proven prior to obtaining a divorce and the procedures to be followed after filing a divorce application.

What matters must be proven prior to obtaining a divorce?

Together with your application for divorce, you must provide proof of the following matters.

That you were legally married

This is proven by providing a copy of the marriage certificate to the court.  If the marriage certificate is not in English, it must be translated by an appropriately qualified translator.

That the marriage has irretrievably broken down

This requirement is satisfied with evidence that you have lived separately and apart from your spouse for at least 12 months before the application for divorce is filed. If you have been separated but remained living together in the same property (known as being “separated under the one roof”) it is still possible to obtain a divorce; however corroborating evidence is required that you have separated and are no longer living as a couple. This may include evidence from third parties such as friends or neighbours.

That parenting arrangements are in place

Applicants must prove that there are satisfactory arrangements in place for any children of the marriage who are under 18.  This does not necessarily require parenting orders to be in place or a written agreement between parents. However, it requires the children to have adequate care and protection.

That the court has jurisdiction to make the divorce

This requires applicants to demonstrate at least one of the following.

  • That they regard Australia as their home and intend to live here indefinitely;
  • That they are an Australian citizen; or
  • That they ordinarily live in Australia and have done so for the previous 12 months.

Procedure for obtaining a divorce after application is filed

Once the application is filed, the next steps to be taken depend on whether the application was a sole or joint application. If the application is a sole application, the applicant must serve the other party with the application for divorce. Usually, the applicant must sign and file an affidavit of service and annexing an acknowledgment of service signed by the respondent. With a joint application for divorce, documents proving service to the court do not need to be completed and filed. The respondent is able to file a response to divorce if they do not agree with the contents to the application for divorce.

If there are children of the marriage who are under 18, the applicant who has filed a sole application for divorce must attend the court hearing. If the parties have filed a joint application, attendance at court is not usually required.

Timeframe for finalisation

An application for divorce must be filed in the Federal Circuit Court of Australia. It takes approximately two to three weeks for the divorce application to be listed for a hearing before a court registrar.  If the legal requirements set out above have been satisfied, a divorce order will be made on that date. The divorce order takes effect one month and one day after the date of the order.  It is not until that date that you become legally divorced.

Obtaining a divorce has the legal effect of bringing a marriage to an end.  It does not determine the parenting arrangements for your children or the division of matrimonial property.

If you require legal advice or representation in relation to obtaining a divorce or in any other legal matter, please contact Armstrong Legal.

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