How To Get A Divorce In Australia

In this article, we take a look at how to get a divorce in Australia. 

When a marriage comes to an end, it can be a profound and often painful transition. Aside from the emotional toll, you’re also faced with the complex legal process of divorce. Navigating these legalities can be overwhelming, especially when you’re already dealing with so much. That’s why we’ve put together this comprehensive guide on how to get a divorce in Australia.

At JP Family Law & Mediation, we understand the challenges that come with this life-altering decision. As experienced family lawyers based in Brisbane, we’ve supported numerous individuals through their divorce journeys. In this guide, we aim to demystify the divorce process, breaking it down into manageable steps, and shedding light on the key aspects you need to know.

Whether you’re contemplating divorce, in the early stages of separation, or ready to take the next legal step, we’re here to help. Let’s navigate this challenging journey together, step by step.

How to File for Divorce

Here are some of the steps that you need to undertake to file for divorce in Australia. 

Confirm your Eligibility

Before proceeding with a divorce application in Australia, you need to ensure that you meet specific eligibility criteria. Understanding these prerequisites can help streamline your application process and avoid unnecessary delays or complications.

Separation duration:

First and foremost, you and your spouse must have been separated for a minimum of 12 months. This period signifies that the relationship has broken down irretrievably, and there’s no likelihood of reconciliation. 

Separation in family law generally means spouses living apart, a decision that can be either unilateral or mutual. It is possible to be ‘separated under one roof’, where spouses live in the same house but lead separate lives. However, this arrangement requires specific criteria to be met and can be complex to prove legally, making professional legal advice highly recommended.

Citizenship or residency:

At least one party in the divorce must meet one of the following conditions:

  • Be an Australian citizen.
  • Live in Australia and regard Australia as your permanent home.
  • Ordinarily reside in Australia and have done so for at least 12 months before the divorce application.

It’s important to note that if you were married overseas, you are still eligible to apply for a divorce in Australia, provided you meet one of the above criteria.

Marriages under two years:

For couples who have been married for less than two years, there are additional requirements. Before applying for a divorce, you will need to attend counselling with a family counsellor and obtain a counselling certificate. If for some reason counselling doesn’t occur, you will need to seek permission from the court to apply for a divorce without the certificate.

Application process:

A divorce application can be initiated by one person (sole application) or jointly by both parties. A joint application can simplify the process as it doesn’t require any formal service of documents and usually doesn’t require a court appearance.

It’s essential to remember that divorce is a legal process and can involve complex aspects. While this guide provides a general overview of the eligibility requirements, we highly recommend seeking legal advice tailored to your circumstances to ensure a smoother journey through the process.

How to Apply

Applying for a divorce is a crucial step, and in order to eFile for divorce, you must register with the Commonwealth Courts Portal. This platform is the Court’s secure website that grants you 24/7 access to your court files, provides the functionality for eFiling, and allows you to access court orders anytime.

For this process, you will need a scanner, a printer, and a Visa or Mastercard for payments.

In case you are unable to eFile, get in touch with the Court via email so that we can provide you with the necessary forms. If you qualify for a reduced fee due to financial hardship, you can still apply electronically.

Registering for the Commonwealth Courts Portal

Before you can eFile or access court files on the Commonwealth Courts Portal, you must first register as a user.

To get started, visit Commonwealth Courts Portal website and click on ‘New users can register now’ to create your unique username and password.

Upon registration, you’ll receive an auto-generated email containing your username and a temporary password. You’ll be asked to create a new password and accept the terms and conditions. Once you’ve finalised the registration process, you can print your orders. 

Further, you’ll receive another email with information on how to navigate through the portal and print your orders. If we provide you access to your file while you’re already registered, we’ll send you an email detailing how to navigate the portal and print your orders.

To start eFiling your application after registration, make sure to read steps 1 to 10 at ‘How do I start eFiling the application once I am registered’ in the ‘How do I file’ section below.

If you are already registered

If you’ve previously registered with the Commonwealth Courts Portal, you can log in and start a new file, even if you’ve had past proceedings. Keep in mind, that divorce is processed separately from other family law proceedings. Therefore, even if you’re already registered, it’s essential to read steps 1 to 10 at ‘How do I start eFiling the application once I am registered’ in the ‘How do I file’ section below to get started.

A step-by-step guide on how to apply for a divorce in Australia:

  1. In the Commonwealth Courts Portal select ‘Start a new file’. Keep in mind that despite any prior family law proceedings, divorce is processed separately from parenting and property proceedings.
  2. Acknowledge whether you’re filing as a law firm or individually by ticking the appropriate box, and then proceed by clicking on Continue then Confirm (if required).
  3. Review the eFiling obligations, tick the corresponding box showing you understand, then click Confirm.
  4. Choose Application for divorce from the drop-down menu, and press Continue.
  5. Choose the right court and click Continue. Remember, if you’re situated in Western Australia, reach out to the Family Court of Western Australia as that’s where all divorces in Western Australia are exclusively filed.
  6. Input a title and description for the application for easy future access. Confirm the creation by clicking Create, then OK. Note: Applications are stored for 90 days before being removed for security reasons.
  7. Fill out Step 1 Part A-F, and remember to Save each page. Once all parts are complete, they should be marked with green ticks. If they’re not, revisit each page for completeness.
  8. Preview the document by selecting print preview. It’s essential to verify the application’s information at this point before locking the application in Step 3.
  9. During Step 2, upload any necessary or supplementary documents, contingent on your responses to questions in Part A-F.
  10. For Step 3, click on Lock and Continue. Once locked, the application cannot be modified. An inactive application will be erased after 90 days.
  11. At Step 4, print the application. The Affidavit for eFiling Application (Divorce) requires your signature. If filing individually, only the applicant needs to sign the affidavit before a lawyer or a Justice of the Peace (JP). For joint applications, both parties must sign before a lawyer or a JP. The affidavit can be signed simultaneously or separately, but both signatures need testimony by a lawyer or JP. In cases where both parties can’t sign a single affidavit, two separate affidavits can be uploaded. Remember, if a JP witnesses your affidavit, they should include their JP number.
  12. Proceed to Step 5 and upload the signed Affidavit for eFiling Application (Divorce). Note: Only the Affidavit of eFiling needs to be uploaded, not the entire application.
  13. For Step 6, download and read the Marriage Families and Separation brochure. It’s a mandatory read for all parties. If you’re filing a sole application, this document should be included when serving documents to the other party.
  14. At Step 7, apply and pay the filing fee (unless you applied for a fee reduction at Q.1). Then choose the state and location for the divorce proceedings. Be aware that if you file a sole application and have children under 18 years or choose to attend at Q.2, you must be present.
  15. Schedule a court date. All divorces are court-listed, although attendance is not always necessary. The dates given here are the earliest available and cannot be expedited.
  16. In the case of a sole application for divorce, you must now serve a copy of the application and other related documents to the respondent.

Navigate the Complex Landscape of Divorce with JP Family Law

We hope that this guide has helped you to understand the divorce process in Australia and provided you with a clearer path forward. Navigating the legalities of divorce can be overwhelming, but remember, you’re not alone. From understanding your eligibility to filing applications electronically through the Commonwealth Courts Portal, every step of the way, we’re here to support you.

At JP Family Law & Mediation, we’re not just legal experts; we’re people who care. As you embark on this journey, rest assured that our team will be by your side, providing the advice and compassion you need.

If you have any further questions or need personalised advice tailored to your situation, please don’t hesitate to contact us.