So you want to get divorced! 12 Things you need to know

Before you apply for a divorce in Australia you or your spouse must :

  • regard Australia as your home and intend to live in Australia indefinitely, or
  • are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.[1]

1. How long do we have to be separated?

Before you can apply to the Federal Circuit Court for a divorce, you need to be separated for a year.  For example, if you separated on 3 April 2015, you cannot make application until 4 April 2016.

2. How do I know we are separated?

It must be clear that at least one of you has decided the marriage is over and has communicated this to the other party.  This is especially important if you separate under the one roof.

3. We can be separated under the one roof?

Yes.  You may need to give the Court further information to establish you were in fact separated.  For example did your family and friends know you were separated?  How did you communicate to your ex that the marriage was over?  You will need to file an Affidavit to support your contention that you were separated under the one roof.  You may also need to file an Affidavit by a friend or family member who was aware you had separated.

4. What if we get back together after separation but then it does not work out?

The total amount of time of separation must total one year.  If you reconcile for longer than three months than the time starts again.  For example, you separate on 10 October 2014 and reconcile on 3 January 2015, but separate again on 31 January 2015.  You cannot file an application for divorce until 9 November 2015.  If however you did not separate the second time until 15 May 2015, then you would have to be separated for a full year from the second time you separated, that is, you could not apply for a divorce until 15 May 2016.

5. Do I need a copy of the marriage certificate?

Yes, if you cannot locate it you need to apply to the state or territory registry (of Births, Deaths & Marriages) for a copy.

6. What if I was married overseas?

If you were married overseas you may still be entitled to apply for a divorce in Australia.  In order to apply for a divorce one of the parties must:

Regard Australia as your home and intend to live indefinitely in Australia OR

Be an Australian citizen by birth or descent OR

Have been granted Australian citizenship OR

Ordinarily live in Australia and have lived here for at least the last 12 months.

7. But I do not want a divorce, what can I do?

The Court will grant a divorce if it is satisfied your marriage has broken down irretrievably and there is no reasonable likelihood of you resuming married life.  If these two grounds are established and the period of separation – 12 months – has been met, then, even if you do not want to get a divorce, the other party can apply for a divorce.  If you have been married less than two years when the application for divorce is made, you may be required to attend counselling to explore the possibility of reconciliation.

8. What about the kids?

If there are children of the marriage under 18, the Court needs to be satisfied there are appropriate arrangements in place for those children before a divorce will be granted.  There are questions included in the Application to give the Court information about the children.  (You can apply for orders about children – “parenting orders”- almost immediately after separation if the need exists.  You do not have to wait until you are divorced.)  If there are already proceedings before the Court then usually the divorce order will be granted even if those proceedings (the parenting proceedings) have not finished.

9. What about the house (investments, superannuation, etc)

You do not have to wait until you are divorced to sort out your property, indeed you can apply for “property orders” as soon as you separate.

10. When can I get married again?

Once you file your Application for Divorce (and any supporting documents), you will need to serve your ex partner.  You cannot serve the Application in person but may serve it by post.  You can get a process server to serve the Application for you.  You will be given a court date 4 to 6 weeks after the date you file your application.  If all the correct information has been given to the Court then the application will be approved and a Divorce order will become final one month and one day after the court date.  For example, you may file your application on 4 February 2015 and be given a court date on 27 March 2015.  On 27 March 2015 your application is approved and your divorce becomes final on 28 April 2015.  You cannot get married before this last date.  In some circumstances you may apply to the Court to shorten the time, however should not rely on the Court approving a shortening of the time.

11. Does the Court charge a fee?

The current fee is $910*.  If you are in receipt of a commonwealth income support payment you may be entitled to a reduction in this fee.

12. I would like more information, where can I go?

Information is available on-line at the Federal Circuit Court.

For more information or to make an appointment with a Family Law Solicitor in either our Canberra or Queanbeyan office contact:

Accredited Specialist Carlos Turini at: cturini@elringtons.com.au or

Phone  the Family Law Team on +61 2 6206 1300

Fill in our request form to book a free half hour initial consultation either by phone or in our Canberra or Queanbeyan office.

* Court fees are subject to change – Court Fees (Family Law)



1. Can I apply for a divorce?

(+5 rating, 1 votes)
Loading...

22 Replies to “So you want to get divorced! 12 Things you need to know”

  1. Dear Dimple,

    In answer to your query about divorce and your right to apply for citizenship. The question about citizenship is, strictly speaking, is outside my area of expertise. You may wish to consult an immigration expert about the citizenship question. You may wish to confirm this information with the immigration expert but I do not believe that there is any impediment for you separating from your husband and divorcing him (after no less than twelve moths elapsed since separation). I do not believe that if you separate from your husband and subsequently divorce him that it would affect your capacity to apply for citizenship in due course.

  2. Hi
    I got my permanent residency from my husband 1 month back. My marriage is breaking diwn because he psychologically abuse me and always controls me.Also he manupulated my whole family and everyone takes his favour and keeps telling about our issue to my parents so that they think i am the bad person. I have bern living in australia for last 3 years. Before i got pr from him, his temporary residency expired and he switched to my student visa. But my husband was the primary applicant for permanent residency. I want to know now if i asked for divorce from him before getting my citigenship in Australia, is there any chance i will loose my permanent residency or he can report me in immigration. Please let me know.

  3. Dear Molly

    In response to your question, your husband may file his Application for Divorce in Australia and arrange to serve you the Application and accompanying documents in person or that you be served by post.

    Service By Post

    It appears that you are prepared to co-operate with the process and we would suggest that the simplest alternative would be that he serve you by post. When he posts the documents to you, he should also post a blank Acknowledgement document which you will need to sign stating that you received the documents including when you received them. You will need to sign and Acknowledgement that you have been served by post by your former husband and return it to him. He will need to sign an affidavit declaring that he recognises your signature in the Acknowledgment.

    Service in Person

    An alternative is that he arrange to serve the Application and accompanying documents in person He cannot serve you the document himself and he needs a third party to do it for him. That person will need to sign an Affidavit of service declaring when and where he served you and how he identified you.

    We hope this answers your question.

    If you have any further questions or concerns regarding the above, please do not hesitate to contact our office.

    Yours faithfully,

    Georgia Briggs
    Solicitor

  4. Hi My ex husband and I have been separated for 15 months, he wishes to file for divorce as he is engaged to a woman from Thailand and wishes to get married. He has been living in Thailand for the majority of the last 12 months only returning to Australia when his business requires it with the intention of moving to Thailand permanently. What is the correct method to be served divorce application/papers by my ex husband.

    Many thanks

  5. Dear Meryem,

    To divorce in Australia you must meet the following requirements.

    Requirement of 12 months’ separation
    In order to obtain a divorce in Australia, you would need to demonstrate that the marriage broke down irretrievably and that you have been separate for no less than twelve months. You separated two months ago. You will need to wait another ten months before you may lodge the application. The Application for Divorce should be lodged no earlier than 12 months and one day after you agreed to separate on a final basis or one communicated to the other that the marriage broke down irretrievably.

    Marriage of less than two years
    In light of the very short period of cohabitation, you and your spouse will need to attend counselling with a qualified family consultant to discuss the possibility of reconciliation. The family consultant will issue a certificate to the effect that reconciliation was attempted. Alternatively, you will need to file an affidavit describing special circumstances why you and your spouse should nto be required to attend counselling – see at http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/publications/family-law/have-you-been-married-less-than-two-years

    In which country to divorce?
    You may divorce in Australia whether or not you are still residing in this country. If you are not residing in Australia, you may apply in Australia on the basis that your former spouse is an Australian citizen and resident.

    You may select to divorce your spouse in the UK once you return to that country.

    Process to apply in Australia.

    We refer you to the Federal Circuit Court website – http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/divorce/apply-for-a-divorce/apply-for-divorce

    We wish you all the best.

    Kind Regards
    Carlos Turini

  6. Hi, I am an English visitor to Australia. I met and married an Australian citizen 2 months Into my 3 month tourist visa. The marriage lasted 11 days before we separated. We have been separated just over 2 months. My tourist visa has been extended and I have another 7 months here before I have to return to UK.
    We were also married Islamically the same day and have also recently been Divorced islamically. Obviously no children involved and there is no property or assets to divide. We are both in agreement to the Divorce.
    What can I do or need to do to get my divorce?

  7. Dear David

    Thank you for your enquiry. Your wife may commence court proceedings for family law property orders at any time while you are still married. There is a time limit of twelve months after a divorce became absolute within which a party may commence family law property proceedings. In other words, if your wife were to divorce you, say, today, the decree will become absolute in one month and she has twelve months from then on to bring an application.

    In some cases, the Court will grant leave to a party to commence proceedings late or out of time, that is, after the twelve months passed if the Court is satisfied that, otherwise, the other party would suffer hardship.

    If you own real estate jointly, your former wife may bring a property claim outside family law, for a partition of title, that is, the division of real property.

    In my view, it is normally advisable to formalise legally a property settlement rather than allow time to run out in the hope that the other party will not bring an action. It depends on the facts. It is a decision which you will have to make personally after you obtain appropriate legal advice. Formalising a family law property settlement brings finality to you both and neither may make a claim against the other in the future. if you start a new relationship, this may add complexity to your financial relationship with your former wife and the new partner combined.

    You should also consider that if you are not divorced and you have a will made during cohabitation, it is not revoked until you enter into a new will or divorce.

    Please note this is general advice only and you should seek legal advice on your own individual situation.

  8. Howdy,
    My wife and I have have been separated for over a year but not yet divorced. We have not begun any divorce proceedings and no plans to just yet. Does these pose any risk if she wants to make a property settlement at some later stage? In 2 years say or even longer if we are still technically married? Can she make a claim at any point while we are just separated but not yet divorced? I’m worried, things are Ok between us but If I moved onto another relationship she might start all of this up. Is it advisable to get divorced and settle things sooner rather than later? Thanks a lot.

  9. Dear Sir,
    I refer to your query about your uncle. In order to grant a divorce, the parties must have been separated for at least twelve months after one party communicated to the other that the marriage broke down irretrievably. The Court needs to be satisfied that the parties were then separated for no less than twelve months.
    Sometimes, the Court accepts that the parties are separated even though they continue to live under the same roof. The Applicant will need to prove that the parties were living separate lives and representing to the world that they were separate. Your uncle will need to file his affidavit and, ideally, his wife will also do an affidavit corroborating his version. We would recommend that there also be additional affidavits from other parties corroborating that the parties have been separated for that long and that they represented to the world that they have been separated for all that time. .
    I believe that it would be advisable for your uncle to engage a solicitor to represent him.
    I hope the above assists. Should you have any other query, please contact us.

  10. My uncle told me that he’s been having trouble dealing with his wife lately and he wants to file a divorce. Could they still be separated even though they live within the roof, without informing the court? I believe divorce is the only way for this to get sorted out. I should probably recommend that he call a family law lawyer for this to get sorted out.

  11. Dear Mas

    Thank you for your query. To give advice specifically on your situation I would need more information. In general, if a person was married and divorced overseas, subsequently remarried and then wished to apply for a new partner’s visa to emigrate to Australia, documentary evidence of the divorce and the new marriage certificate should be sufficient for the purpose of the application for the partners visa.

    If you would like more information please contact me at cturini@elringtons.com.au, we do offer a free half hour initial consultation.

  12. My spouse is in Australia and i gave her divorced from another country that was our home country before immigrating here so does that divorce would accept here in Australia and how this divorce can be recognized and registered/acknowledged here as i got married another time and want to submit new marriage declaration and apply for new spouse visa too? Thanks.

  13. Dear Marie,
    Your husband would not be able to apply for divorce, not at this stage. To establish the grounds of a divorce, he would need to prove the you separated for no less than 12 months and that, when you separated, he communicated to you that the marriage had ended.
    The fact that you have been living in separate countries (for the reasons which you described) is not enough for him to get a divorce. In Australia, the concept of fault regarding a divorce no longer exists. In other words, the reasons why parties separate are considered a private matter. However, he would need to prove that the marriage ended and that you have been separated for that period of time. If he files an application now, you may challenge the application and his application is bound to fail.

    However, adultery is not an offense in Australia.

    Whether or not a divorce is to take place sometime in the future, you have, I expect, immediate claim against your husband for a family law property settlement, maybe spousal maintenance and child maintenance. It’s not clear from your email in which country you reside. Australia has arrangements with various countries to obtain child support from your husband.

    Should you have any further queries, please do not hesitate to contact us. We offer a half-hour free advice which could take place via video or via telephone.

    Kind Regards
    Carlos Turini

  14. Hubby and I have been living in different country (him Australia) and me back home due to a few family issues (death of his mum and his sister being a minor on her own). So I stayed back to take care of things and at one point he insisted for me not to come to OZ and wait a bit. I recently learnt he has a girlfriend in OZ, I bet that is the reason he didn’t want me there. The last time we met was when he visited last month and we have not been close as a couple for the past 2 years due to circumstances but we still phoned everyday and talked.Is that considered separation and he can file a divorce? Is adultery not an offence in NSW? We also have a 5 years old son

  15. Dear Sheila,
    Unfortunately, it is not possible to shorten the 12 months’ requirement. The Court would need to be satisfied that the marriage broke down irretrievably, that one of you communicated this fact to the other and that you have been living and apart for twelve months.

    Sometimes, it’s possible to establish that separation started before physical separation when you were under the same roof but you would then need to prove that you were living separate and apart in every way, financially, socially and within the home and that you were not representing to the world that you were still together. that is harder to prove and you may need other people to provide additional evidence to support you.

    I agree that a divorce may assist you to convince your former husband that it’s all over.

    I hope the above is of assistance. I would be happy to discuss your personal matter in a phone call free of charge through our free half hour initial consultation.

  16. Hi I been separated for 7 months
    Is there a way too get a fast divorce due too domestic violence like getting courts too see I need too cut the cord or he will harass me and think we are still a item

  17. Thank you for your query.

    If you are separated from your husband and living in separate locations your word that you have separated should be sufficient for both Centrelink and the family court as long as your husband confirms the date of separation.

    If you and your husband separated but still live under the same roof and you need to prove the separation for Centrelink purposes, you would simply need to declare that you separated if you need their assistance, again your former partner may need confirm to Centrelink that you separated.

    If you need it for an application for divorce, you have to prove that the marriage broke down irretrievably and you have lived separately for at least twelve months. You need to prove that you communicated to each other that you separated which you say you have. You can prove the separation if both support this, even if you lived twelve months separated under the same roof. You may need supporting evidence of others, such as your family and friends, as well.

    Please see our article “So you want to get divorced – 12 things you need to know“.

    I hope the above helps. If you have other queries please contact me or another member of our family law team.

  18. hi, me and my husband is separated but we have not informed any government officials as i thought it might work again but now its getting worst. how can i prove my separation? my family and friends know about this. we have not informed my daughter child care centre. please help

  19. Thank you for your enquiry.

    You may apply for “substituted service” in your case to address the fact that you don’t know where your former wife may be.

    Normally, if you are the applicant, you must serve the other party (the respondent) in person and to prove to the Court that you have. You would need to engage someone (a process server) to serve the documents on your former wife. If the respondent is likely to co-operate, the documents may be served by post on her and the respondent must sign an acknowledgement that she received them and send it back. You can rely on her acknowledgement as proof that she was served with the documents.

    If there is no way to know where the respondent is, it is possible to apply for “substituted service“. It will require, in addition to the Application for Divorce, to file an Application in a Case and your affidavit explaining the circumstances of the case and providing in the affidavit

    1. her last known address
    2. the details of relatives like parents, relatives including addresses.

    The Court may order that the documents be served on the last known address and/or relatives etc.
    If nothing else works, the Court may order that you place a notice in newspapers notifying that the matter is in Court and orders may be made in the respondent’s absence if she doesn’t turn up and object.

    I hope the above helps.

    The information above is of a general nature only, for more information about your specific information please don’t hesitate to contact us or another solicitor.

  20. I have been separated for almost 30 years, but didn’t bother getting a divorce because I didn’t want to get married until now, do I need to find my spouse?

  21. Thank you for your question.

    You may divorce in Australia in relation to your marriage from overseas. You will need to file a copy of the Marriage Certificate and, if it is not in English, a translation from an accredited translator.

    Substituted Service or Dispensation with Service
    As you do not know your husband’s current address, you would need to file an additional application with your Application for Divorce, namely an application for “substituted service” and/or dispensation with service) and an affidavit. If successful, then you would not need to serve your husband with the Application for Divorce in the normal way.

    The affidavit will need to list all the attempts that you have made to let your former husband know that you would be filing your application by trying to contact him at his last known postal address, email address and the postal and email addresses of his relatives.

    A Registrar of the Court will then let you now before the hearing whether the Court is satisfied and order substituted service (for example, to an email address) or dispensation of service altogether.

    If you would like further information please contact me by email cturini@elringtons.com.au or phone +61 6206 1300

    Regards
    Carlos Turini

  22. Hi, i want to apply a sole application for divorce and i got married overseas but now i donot know address of my husband. We donot have any child and property etc. Can i get more information regarding this please?

Leave a Reply

Your email address will not be published. Required fields are marked *