If you are applying for a divorce application on your own, this is known as a sole application for divorce. You are the applicant and your spouse is the respondent.
Are you eligible?
Before you are able to apply for an application for divorce, you must answer “yes” to either of the following questions:
Limited child support agreements must already have a child support assessment in place whereas a binding child support agreements do not require an assessment to be in place and can be entered into with or without a child support assessment.
The amount payable under a limited child support agreement must be equal to or greater than the amount payable under the child support assessment whereas a binding child support agreement can range from a periodic payment of nil to a specific amount for each child, providing more flexibility to the parties.
Limited child support agreements can be ended without agreement by either of the parties as long as notice is provided and the agreement has been in place for a period of 3 years.
Separated for month than 12 months
It is a requirement that you and your spouse must 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 said 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 you will need Marriage Certificate
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 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.
Signing your divorce application
Once you have complete drafting your sole divorce application, only you need to sign Part G in the presence of a qualified witness (which includes a Justice of the Peace, Commissioner for Oaths, or a Lawyer).
Court Filing Fee
The current Federal Circuit Court filing fee is $930.00 which is required to be paid at the time of filing your sole 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:
A Government concession card (such as a healthcare card or a pensioner concession card); or
If you do not have a concession card, but you will experience financial hardship if you pay the Court fees.
If you have a concession card, you can tick “yes” to the question at the beginning of the online form about seeking a reduction of the Court fee. You will be required to scan and upload both sides of your concession card. You must have a concession card in order to be eligible for the reduced Court filing fee.
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.
You are required to complete the financial hardship form, in order to be eligible, subject to the Court accepting the information contained in your financial hardship form.
Service of your divorce application on your spouse
You will also be required to serve your divorce application and supporting documents on your spouse.
You are not allowed to personally hand the documents to your spouse. You can organise for a third party who is over the age of 18 or a process server to attend to serving of your divorce application and supporting documents.
If your spouse is in Australia, your sole application for divorce and supporting documents must be served at least 28 days before the divorce hearing date.
If your spouse is overseas, the documents must be served at least 42 days before the divorce hearing date.
Do I need to attend the Court hearing?
You must go to Court and attend the divorce hearing if you applied for a sole application for divorce and there is a child of the marriage under the age of 18 years at the time you applied. This includes children living with you that you and your spouse treated as members of your family (for example a foster child or a child from a previous relationship).
You will also be required to attend the divorce hearing if you are applying for an order for substituted service or for service to be dispensed with and/or you have filed an affidavit to explain a situation such as separation under the same roof or where you have been married less than 2 years.
If you are unable to serve your spouse, you may seek an order for substituted service which is to request the Court for service to be effected in a different manner, for example, by email transmission. The Court may make an order for service to be dispensed with if you are unable to serve your spouse at all, for example, if you cannot locate them and/or you do not know where they live.
The Court may require further information
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.
When you file your sole 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.
If you do not attend the divorce hearing and the Court requires further information from you, the Court will adjourn your matter to another Court date. The Court will notify you of this Court date which will be available on the Commonwealth Courts Portal. You must attend Court on this date.
When you attend Court, it is important that you have all of the documents that you have filed in the Commonwealth Courts Portal including your sole divorce application and supporting documents.
If the Court grants the divorce, the divorce becomes final one month and one day after the hearing date. After that date, the Court will upload the divorce order on the Commonwealth Courts Portal. The divorce is not final until the 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.