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Divorce Procedural

In Australia getting a divorce is not a simple process. In this article, we will explain the number of steps which will involve in the application of divorce in Australia.

Before you apply:


In all states of Australia (with the exception of Western Australia), you must apply for divorce through filing an application in the Federal Circuit Court of Australia. Before your application can be accepted, there are certain criteria that you must satisfy the Court that it has jurisdiction to rule on your divorce matter. In a summary, you must prove to the Court that either you or your spouse:

  • regard Australia as their home and intend to live in Australia indefinitely; or
  • be an Australian citizen by birth, descent or by grant of Australian citizenship; or
  • live in Australia and have done so for the 12 months immediately before filing for divorce.

Please note that it does not matter where you got married whether in the Australia or not, you may apply for divorce in Australia so long as you and your spouse are legally married and satisfy the above jurisdictional criteria.

Separation:


In Australia, you must have been separated for a continuous period of at least 12 months immediately before you applying for divorce.

If you and your spouse separated but remained living under the same roof (or was living under the same roof for any period which count towards your period of separation), you may need to provide additional evidence to satisfy the Court that you and your spouse and have genuinely separated. In this circumstances, we suggest you first seek legal advice before applying for divorce.

If at the time of your application, it was within two years from the date of your marriage, you and your spouse will be required to attend relationship counselling and obtain a certificate signed by a certified counsellor.

Applying for divorce:


You can apply for the divorce by yourself only or jointly with your spouse. In either of these situations, you will need to complete the Application for Divorce which can be download from the Federal Circuit Court of Australia website. After you and /or your spouse fill in the relevant field, you and/or your spouse are required to sign the application before a qualified witness, such as a Justice of Peace, a medical practitioner or a lawyer.
Once you complete the Application for Divorce, you will need to file it at a registry of the Federal Circuit Court of Australia which can be found here. You will also be charged a Court filing fee which can also be found on the Federal Circuit Court of Australia website.

Service of divorce application:


Once your Application for Divorce is filed, you need to serve a copy of the application on your spouse. However, this requirement only applies when you are applying for divorce by yourself and not in the situation where the application is lodged jointly by you and your spouse.
If service is required, you may service the application by personal service (ie, delivering it to your spouse in person) or by post. You may find more information on the Divorce Service Kit available on the Federal Circuit Court of Australia website. You may also seek legal advice in this respect if you are having any difficulties in completing the service requirement.

Your divorce hearing:


Once your divorce application is filed, you will be given a hearing date which can be found on the cover page of your Application for Divorce.

You must attend the hearing where:

  • you made the Application for Divorce on your own; or
  • if you and your spouse have children under 18 years of age.

If you do not have children under 18 or if you file a joint application with your spouse, you can choose not to attend the divorce hearing.

At the hearing:

You must reach the Court before the designated hearing time. When you arrive, tell the court office your name and your matter so they can note your attendance. You then take a seat in the back of the court room and waiting for your matter to be called.

Once the court office calls your matter, you shall come to the bar table and your divorce hearing will start. During your hearing, the Registrar may ask you some questions based on the information you provided in your Application of Divorce. If you have children under 18 the Registrar may want to know whether there is proper arrangement for the children, such as which parent they live with, how often they spend time with the other parent and how they are financially supported. 

The outcome:


If the Registrar satisfies that the grounds for divorce have been established and the Application for Divorce is properly served (if required), the Court will grant the divorce in the hearing.

The divorce order will become final one month and one day after the date of hearing and the Divorce Order will be sent to you and your spouse after the order becomes final.