Application for Divorce

Understanding the Divorce Application

The Application for Divorce is the legal document that formally ends your marriage. In Australia, divorce is entirely separate from property settlements and parenting arrangements — you do not need to have these matters resolved before applying for divorce.

The Application for Divorce asks the court to grant a divorce order, which legally dissolves your marriage. Once the divorce order takes effect (one month and one day after it is granted), you are legally single and free to remarry.

Sole vs joint application

You can apply alone (sole application) or together with your spouse (joint application). A joint application is simpler and does not require service on the other party, but both parties must agree to the divorce.

Australia's no-fault divorce system

Unlike some other countries, Australia has a no-fault divorce system. This means you do not need to prove wrongdoing by either party — no blame, no accusations, no fault. The only ground for divorce is that the marriage has broken down irretrievably with no reasonable likelihood of reconciliation, proved by demonstrating 12 months of continuous separation.

Eligibility Requirements

Before you can apply for divorce in Australia, you must meet certain eligibility requirements. These are non-negotiable legal prerequisites that the court will verify.

1. 12-month separation period

You must have been separated for at least 12 months and one day before you can file. This separation must be continuous, although there is a provision for one reconciliation attempt of up to 3 months without restarting the clock.

2. Jurisdictional requirements

At least one of you must satisfy one of the following: be an Australian citizen; regard Australia as your home and intend to live in Australia indefinitely; or be an ordinary resident in Australia for at least 12 months immediately before filing.

3. Valid marriage

Your marriage must be valid and recognised under Australian law. You must provide your marriage certificate. If your marriage certificate is not in English, you must provide a certified translation.

Understanding "separation"

Separation does not necessarily mean living in different houses. The law recognises that couples can be separated while still living under the same roof due to financial or other practical reasons.

Step-by-Step Filing Guide

This section walks you through the entire divorce application process, from gathering documents to receiving your final divorce order.

Step 1 — Gather required documents

Before starting your application, ensure you have all necessary documents ready:

• Marriage certificate: original or certified copy (if not in English, provide certified translation).
• Proof of Australian citizenship or residency: if applicable — passport, citizenship certificate, visa.
• Affidavit (if required): for separation under one roof or if marriage certificate is unavailable.

Step 2 — Choose your application type

A sole application is filed by one party only. You must serve the other spouse; they can oppose (but rarely successfully); and a court hearing is usually required. Use this when your spouse will not cooperate or you cannot contact them.

A joint application is filed by both parties together. No service is required; both must sign the application; and no court hearing is required if there are no children under 18. Use this when both parties agree to divorce and cooperate.

Step 3 — Complete the application online

All divorce applications must be filed electronically through the Commonwealth Courts Portal. The system guides you through each section. Key information required includes: full names of both parties (as on marriage certificate), date and place of marriage, date of separation, current addresses of both parties, details of any children under 18, and proof of jurisdiction.

Step 4 — Pay the filing fee

The standard filing fee is approximately $990 (updated annually on 1 July). A reduced fee is available if you hold a Health Care Card, Pensioner Concession Card, or Commonwealth Seniors Health Card. In cases of severe financial hardship, you can apply for a full fee exemption with evidence of financial circumstances such as Centrelink statements or bank records.

Step 5 — File and serve (sole applications only)

For sole applications, after filing you must serve a copy of the application on your spouse. See the service requirements section below for detailed rules. Joint applications require no service — both parties have already signed the application.

Step 6 — Attend hearing (if required)

Attendance is required for sole applications (the applicant must attend) and joint applications with children under 18 (at least one party must attend). For a joint application with no children under 18, the divorce can be granted on the papers without either party attending court.

Step 7 — Divorce order granted

If the court is satisfied that all requirements are met, it will grant the divorce order. Your divorce becomes final one month and one day after the divorce order is granted. Until then, you are still legally married. This waiting period allows time for an appeal if necessary.

Common Mistakes to Avoid

Many divorce applications are delayed or rejected due to avoidable errors. Understanding these common pitfalls will help you navigate the process smoothly.

Application errors

• Filing too early: not waiting the full 12 months and 1 day.
• Wrong names: using nicknames or names different from the marriage certificate.
• Missing certificate: not attaching the marriage certificate or translation.
• Incomplete information: leaving required fields blank.

Service errors

• Serving yourself: the applicant cannot serve documents.
• Late service: not serving at least 28 days before hearing.
• No proof: failing to file an affidavit of service.
• Wrong method: using email or post when personal service is required.

Timing mistakes

• Miscounting separation: the 12 months starts the day after separation.
• Reconciliation errors: not understanding the 3-month rule.
• Missing hearing: not attending when required.
• Property deadline: waiting too long after divorce to apply for property settlement.

Separated under one roof errors

• No affidavit: failing to file a supporting affidavit.
• Weak evidence: not enough detail about separate lives.
• Missing witness: not obtaining a corroborating affidavit.
• Inconsistent story: contradicting evidence.

Service Requirements

For sole applications, you must serve your spouse with the divorce documents. Proper service is essential — if service is defective, the court cannot proceed with your application.

Who can serve and when

Any person over 18 who is not a party to the proceedings can serve — a friend, relative, or professional process server. You cannot serve the documents yourself.

Documents must be served at least 28 days before the hearing date if your spouse is in Australia, or 42 days if they are overseas.

Methods of service

• Personal service (preferred): the server physically hands the documents to your spouse. This is the most reliable method and is always accepted by the court. Use a professional process server if you expect difficulties or anticipate a hostile reaction.
• Service by post: only permitted if your spouse is in Australia and has consented to be served by post, or if the court grants permission. Documents must be sent by registered post.
• Electronic service: requires either your spouse's consent or a court order. You must obtain an acknowledgment of service from your spouse.

Documents that must be served

• Sealed Application for Divorce: the court-stamped copy of your application.
• Brochure: "Marriage, Families and Separation" information brochure.
• Response form: blank response form for your spouse to complete if they wish.
• Acknowledgment of Service form: for your spouse to sign and return.

What Happens After Filing

Timeline overview

1. Application processed (1–2 weeks): the court registry reviews your application for completeness. If everything is in order, you'll receive a sealed copy and a hearing date.
2. Service period (28+ days before hearing): for sole applications, you must serve your spouse and file proof of service with the court. Joint applications skip this step.
3. Hearing date (typically 2–4 months after filing): attend the hearing if required. For most cases, this is a brief procedural hearing where the judge confirms all requirements are met.
4. Divorce order granted (at hearing): if satisfied, the court grants the divorce order.
5. Divorce becomes final (1 month and 1 day later): you are now legally divorced and free to remarry.

What if your spouse does not respond?

Your spouse does not need to agree to the divorce for it to proceed. If they do not respond after being properly served, the divorce can still be granted. The court can proceed on the papers or at the hearing without their participation, provided you prove service occurred.

Your spouse can file a response opposing the divorce, but opposition is rarely successful. The only grounds for opposing are: the 12-month separation has not occurred, the court does not have jurisdiction, or the marriage is not valid. They cannot oppose simply because they do not want the divorce.

Special Circumstances

Spouse living overseas

If your spouse is overseas, you can still apply for divorce, but service requirements differ depending on the country. For countries with reciprocal agreements with Australia, service can often be done through official channels or local courts — the extended deadline is 42 days before hearing. For countries without agreements, you may need to apply to the court for alternative service methods or substituted service.

Unable to locate your spouse

If you cannot find your spouse despite genuine efforts, you can apply for an order for "substituted service" — serving documents by alternative means. Steps include:

1. Document your search efforts: electoral roll, social media, family or friends, last known address.
2. Prepare an affidavit detailing all attempts to locate your spouse.
3. Propose an alternative service method such as email, social media, or posting to relatives.
4. File an application for substituted service with the court.

In extreme cases where no method of service is possible, you can apply for "dispensation of service" — asking the court to proceed without any service. This is rare and requires compelling evidence that service is impossible.

Separated under one roof

If you and your spouse lived in the same house during your separation period, you must provide additional evidence to prove the relationship had genuinely ended. This requires:

• Affidavit from you: describing your separate lives in detail.
• Affidavit from a witness: someone who observed your separate living arrangements.

Evidence to include: sleeping in separate bedrooms, not eating meals together, separate finances and bank accounts, no longer attending events together as a couple, telling family and friends about the separation, and no intimate relationship.

Children under 18

If you have children under 18, the court needs to be satisfied that proper arrangements are in place for their care, welfare, and development. The court considers who the children live with, contact arrangements with each parent, financial support arrangements, and educational arrangements.

Common Questions