A joint divorce application is where you and your spouse agree to prepare and file the joint application together. Therefore, both you and your spouse are joint applicants. If you and your spouse apply for a joint application, neither spouse needs to attend the divorce hearing unless you choose to and neither spouse needs to be served with the divorce application.
Before you are able to apply for an application for divorce, you must answer “yes” to either of the following questions:
Are you an Australian Citizen by grant of Australian Citizenship?
Were you born in Australia or have you become an Australian Citizen by decent
Are you legally in Australia and have lived here for the last 12 months?
Further, it is a requirement that you and your spouse have been separated for more than 12 months.
The Court does not have discretion to shorten the time period, even with the consent by both spouses. This is to ensure that the marriage has broken down irretrievably.
If you and your spouse have been living separately under the same roof for more than 12 months, you can still apply for a divorce, but the Court will require you to prepare and file an affidavit as evidence that you are separated, notwithstanding you are living under the same roof.
An affidavit is a written statement of evidence. The Court requires evidence that either you or your spouse have informed the other that the relationship was over, and from that time, you did not act like husband and wife, but you spoke and behaved like a separated person both inside and outside the home.
The Court will require each spouse to file an affidavit, or alternatively one from either of you and a third person who has known you (usually a family member or friend) who are aware that you and your spouse are separated, notwithstanding living under the same roof.
If you and your spouse have been married less than 2 years, you and your spouse must consider marriage counselling before applying for a divorce.
If there has been violence or abuse in the marriage or you are unable to locate your spouse, you can request the Court’s permission to apply for a divorce without the requirement for marriage counselling.
An affidavit will need to be prepared and filed in Court as to why you are unable to attend marriage counselling.
To apply for an application for divorce, this is done online through the Commonwealth Courts Portal.
The documents that are required to be provided in support of your application include your marriage certificate. If you were married in Australia but do not have a copy of your marriage certificate, you can contact the Registry of Births, Deaths & Marriages in your State or Territory.
If you were married overseas and your marriage certificate is not in English, you must have it translated into English by an authorised translating service. The translator is required to prepare an affidavit to confirm that all of the contents contained in the marriage certificate is translated in English and the affidavit will be required to be filed together with your marriage certificate. To find an authorised translator, contact the National Accreditation Authority for Translators and Interpreters (NAATI) in your State or Territory who can assist you with translating your marriage certificate to English.
Citizen Certificate or visa documents if born Overseas
If you were born overseas, you will need a Citizen Certificate or visa documents which shows you are living legally in Australia and have lived continuously in Australia for more than 12 months.
Once you and your spouse have completed the joint divorce application, both you and your spouse must sign Part G in the presence of a qualified witness (which includes a Justice of the Peace, Commissioner for Oaths, of Lawyer).
You are not required to sign the joint divorce application at the same time or with the same qualified witness.
The current Federal Circuit Court filing fee is $930.00 which is required to be paid at the time of filing your joint divorce application online through the Commonwealth Courts Portal.
The Federal Circuit Court accepts Mastercard and Visa credit or debit cards. You can ask the Court to reduce the Court filing fee if you have:
If you do not have a concession card but you will experience financial hardship as a result of paying the Court filing fee, there is a section where you can tick “yes” to the question at the beginning of the online form about seeking a reduction of the Court filing fee for financial hardship.
When prompted, complete the detailed form about your finances which includes information about your income, assets, and debts. Both spouses are required to complete the financial hardship form, which will be subject to approval by the Court whether to accept that the fees will cause hardship.
When you file your divorce application electronically, you can elect a date that is available for your Court hearing and also the jurisdiction where you are seeking your application to be heard.
The Court may require you to provide further evidence to the Court if:
Your name or your spouse’s name is different from the names that appear on the marriage certificate;
You are unable to locate your marriage certificate;
You and your spouse were separated but lived under the same roof;
You have been married for under 2 years and are unable to attend marriage counselling.
On the allocated Court date, the court will hear your application for divorce. If the Court grants the divorce, the divorce becomes final one month and one day after the hearing date. After that time, the Court will make the divorce order available which can be downloaded from the Commonwealth Courts Portal.
It is important to note that you are not divorced until a Divorce Order is made.
If you require assistance with initiating court proceedings or responding to an initiating application, feel free to book a complimentary appointment with an experienced family lawyer of our team or give us a call on 1300 001 298.