Divorce in Australia
Divorce is regulated under the Family Law Act 1975 (Cth) (the “Act”).
In Australia, we have no fault divorce – meaning the parties to a marriage are not required to demonstrate why they want a divorce. The Act only requires that the marriage has irretrievably broken down.
Am I eligible to apply for a divorce?
In order to be eligible for a divorce under the Act, you must either:
be an Australian Citizen;
live in Australia and regard Australia as your permanent home; or
ordinarily live in Australia and have done so for the past 12 months.
If you were married overseas, but satisfy one of the above criteria, you are still eligible to apply for a divorce in Australia. However, you will require the original marriage certificate, a translation of it (if not in English) and an affidavit of the translator.
When can I apply for a divorce?
You can apply for a divorce only after you and your spouse have been separated for a minimum period of 12 months. If you and your spouse remain separated, there is no time limit on when you can apply for a divorce.
How do I apply for a divorce?
The process for applying for a divorce is very straightforward. You have two options:
joint application; or
sole application.
If you and your spouse mutually agree to the divorce, are amicable and are in good communication, then you may apply for divorce together with a joint application.
If you and your spouse do not have a good relationship, or your spouse does not want to partake in the joint application, you may apply for the divorce by sole application. This requires you to fill out the application and serve it on your spouse. Your spouse can then file a response if he/she wishes to oppose the application or dispute some of the facts contained in your application, or he/she can choose not to file a response at all.
How much does it cost?
The current filing fee for a divorce application is $910, irrespective of whether you file a joint or sole application.
Am I eligible for the reduced fee?
You may be entitled to the reduced fee if you:
hold a card issued by the Department of Human Services, for example a health care card;
have been granted Legal Aid;
are receiving youth allowance, Austudy or ABSTUDY;
are aged 18 or under; or
are legally detained in a public institution.
If you do not satisfy any of the above criteria but cannot afford the filing fee, you may be eligible for a reduction on grounds of financial hardship if you satisfy the relevant criteria under the Family Law (Fees) Regulation 2012 (Cth). The relevant criteria looks at your income, assets, expenses and liabilities to determine whether the filing fee would cause you financial hardship.
Hearing date
Once your application has been filed, you will be given a hearing date at which the divorce application will be processed.
Can my spouse contest my sole application?
If you file a sole application and your spouse is served with the application within Australia, your spouse has 28 days from the date of being served to file a response which may contest your application (or 42 days if served outside of Australia).
What if my spouse contests my sole application?
For a divorce application to be successful, the Act only requires that the marriage has irretrievably broken down. Therefore, the only way to prevent the divorce order is to demonstrate that this has not occurred, either by not having satisfied the 12 months separation, or because the parties both believe there is a chance they will reunite.
It is not sufficient to contest a divorce application on the sole ground that you do not want to get divorced.
If you are served with your spouse’s response opposing your application, you should seek legal advice.
Do I have to attend the hearing?
You are only required to attend the hearing if you have filed a sole application and you and your spouse have children under the age of 18, or if your spouse files a response opposing your sole application.
How do I obtain the divorce order?
When the divorce order is granted, it will be finalized one month and one day after the hearing date. You will then be able to access the order online.
What about property, maintenance and parenting?
An application for divorce does not deal with property, maintenance or parenting.
You should seek legal advice for these matters.
Where to next?
Divorce is an emotional and difficult time. The Merton Lawyers team is here to help you navigate through family law and assist you with your divorce, property, maintenance and parenting matters.
Please feel free to contact our Family Law Team on (03) 9645 9500 or via email at emily.velo-craig@mertonlawyers.com.au if you have any questions or require assistance.
