Divorce Adelaide, Devorce Lawyer
Divorce
Getting a divorce
Divorces are usually applied for in the Federal Magistrates Court. To apply you need to file an Application for Divorce with the Court and pay the application fee or be eligible for a fee exemption or waiver.
You can apply for a divorce by yourself (sole application) or together with your spouse (joint application).
If you apply for divorce on your own, you are the applicant and your spouse is the respondent. For a joint application, the husband and wife are joint applicants.
You may prepare your own divorce papers or ask a lawyer to do it for you.
Who can apply?
You can only apply for divorce in Australia after you have been separated for at least 12 months. To apply for a divorce you will need to show that:
you and your former partner (spouse) are married
your marriage has broken down irretrievably (permanently) and you do not intend to resume married life with your spouse
you and your spouse have been separated for at least 12 months and one day, and
you or your spouse are Australian residents or citizens or regard Australia as your permanent home.
What the court considers
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that the Court does not consider why the marriage ended. The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for a period of 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably. If there are children aged under 18, the Court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
Arrangements for children, maintenance and property
The granting of a divorce does not decide issues of maintenance, child support, property or parenting arrangements for your children. If you want to apply for orders about these issues, you should do so on a general application form. If you need to apply for maintenance for yourself or a division of property, you must apply to the Court within 12 months of your divorce becoming final. After that time you will need the Courts permission to apply.
Fees
You must pay a fee when you file the divorce application. View the fees section for fees associated with divorce applications. Fees do not apply in some cases; for example, if you hold certain government concession cards or you can show financial hardship. To be eligible for a fee exemption or waiver for a joint application, both the husband and wife must qualify for the exemption or waiver. If only one spouse qualifies for the exemption or waiver, then the full fee applies.
Separation under one roof
It is possible for you and your spouse to be separated but to continue to live in the same home at any time in the 12 months before applying for divorce. This is known as separation under the one roof. If this is your situation, you will need to prove to the Court that you were separated during this time. If you are a sole applicant, you will need to give the Court an affidavit. If you are filing a joint application, both you and your spouse will need to give affidavits. The Court also requires a third person to give an affidavit that contains as much information as is known to them about the separation. This requirement applies for both sole and joint applications. Your affidavit should address issues such as:
sleeping arrangements
financial arrangements
who does the household duties
if you are still living under the one roof, what intention (if any) you have of changing the situation
if there is any particular reason why you are continuing to live under the one roof
if you have notified family/friends of the separation
if you have children under 18 years of age, what living arrangements you made for the care of the child/children while you were living under the one roof
if you receive a government benefit, such as a Supporting Parents Pension, whether you have informed the relevant department of your circumstances and whether separate government benefits are being paid on the basis of the separation.
If you have not informed anyone about your separation, you will need to explain why in your affidavit.
The Courts have a fact sheet Separated but living under one roof that contains more information. It is available at the Publications section of this website.
Marriages under two years
If you have been married for less than two years and want to apply for a divorce, the Family Law Act requires you to do one of two things.
Before applying for a divorce, you must either:
Attend counselling with a family and child counsellor or an approved counselling organisation to discuss the possibility of reconciliation with your spouse. You must arrange for the counsellor to fill in and sign a counselling certificate, which is available from the Courts. You will need to attach the certificate to the back of the Application for Divorce when you file it.or
If you have not obtained a counselling certificate, you must seek permission of the Court to apply for a divorce. To do this, you will need to prepare an affidavit and file it with the Court. In the affidavit you will need to set out why you and your spouse have not attended counselling. For example, you do not know the whereabouts of your spouse or your spouse refuses to attend counselling.
The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce. You also must have been separated for at least 12 months and one day before applying for a divorce.
The Courts have a fact sheet Have you been married less than two years that contains more information. It is available at the Publications section of this website.
If you married overseas
If you were married overseas, you can apply for a divorce in Australia if you or your spouse:
is an Australian citizen or resident, or
regard Australia as your permanent home.
If your marriage certificate is not in English, you will need an English translation of the certificate and an affidavit from the translator which:
states his or her qualifications to translate
attaches a copy of the marriage certificate
attaches the translations
states that the translation is an accurate translation of the marriage certificate,
states that the attached copy of a marriage certificate is a true copy of the marriage certificate translated.
If you cant find your spouse
If you do not know where your spouse is, you can apply to the Court for the divorce to go ahead. However, you must show the Court that you have tried to contact your spouse and explain your attempts to contact them in an affidavit.
If you cannot directly serve court documents on your spouse (the respondent) after taking all reasonable steps to do so, you can apply to the Court for:
substituted service, or dispensation of service.
Service is the process of sending or giving court documents to a respondent after they have been filed with the Court. Service shows the Court that the respondent has received the documents the Court is considering. Follow the above link at In this section to the page titled Service of documents.
Please note, Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.
Can you oppose a Divorce Application filed by your spouse?
If you have been separated for more than 12 months, there are few opportunities to oppose an Application for Divorce. You can only oppose the divorce where:
there has not been 12 months separation as alleged in the application, or
the Court does not have jurisdiction.
If you do not want the divorce granted, you must complete and file either: a Response Divorce or Other Principal Relief, or a Response Objecting to Jurisdiction asking for the application to be dismissed. You will need to set out the grounds on which you seek the dismissal.
If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.
What if there are errors in the facts in the application?
If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response Divorce or Other Principal Relief. You will need to say which facts you disagree with. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct.
Do you have to attend Court for a divorce?
If you and your wife or husband do not have a child under 18 years of age, you do not need to attend the divorce hearing.
If there is a child under 18 and you are applying on your own, you must come to the Court for your hearing at the time and date entered on your application form. You can ask to attend the hearing by telephone. Contact the relevant Family Courts registry to make arrangements.
However, if there is a child under 18 and you make a joint application, you do not have to attend the Court if you have requested in the application that the application be heard in your absence. (The term child includes a child of the husband and wife and a child treated as a child of the family (whether related to the parties or not) at the time of separation.)
However, in special circumstances the Court may still require you to attend the hearing. The application may be adjourned to enable your attendance. It is also important to note that the granting of a divorce does not decide issues of maintenance, child support, property or parenting agreements for you children. If you want to apply for orders about these issues, you do so on a general application form. For maintenance for yourself or a division of property, you need to apply within 12 months of your divorce becoming final or gain the Courts permission.
If you are planning to remarry
You should not plan to remarry until the divorce order is finalised (in most cases, one month and one day after the divorce is granted). Do not assume that the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.
If you intend to remarry, you must give the marriage celebrant a Notice of Intended Marriage at least one month before the wedding date, and comply with other requirements of the Marriage Act 1961.
As soon as the divorce order is granted, the marriage celebrant may accept the Notice of Intended Marriage. You must show the Certificate of Divorce to the marriage celebrant before the wedding can take place.’
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