Getting a Divorce

Yes, you can do it yourself. Depending on your circumstances, you may not need legal advice. The Family Court provides kits for parties to apply for their own divorce, without legal representation. The kit is free. It has excellent, comprehensive information. Documents can be filled in by hand. The Form 4 application itself can be downloaded in PDF format from the Wikivorce Site.

No. There must be 12 full months of separation. The divorce application can only be sworn the day after the anniversary of that event. In some instances, you can shorten the time for the pronouncing of a decree absolute. This period is a month in normal circumstances. If this is of concern to you, you should obtain legal advice on what to do.

If there are no children of either your spouse or you under 18, then you do not need to go. The divorce application gives you the option of not attending. If you have any children under 18, either you or your lawyer must attend. It is better if you go to court to make sure the application is granted.

The required period of separation begins the day at least one of the parties considers the marriage to be over and communicates this to the other party. It is usually sufficient if it is stated in the Application for Divorce that a party started living with someone else, has been in receipt of the Parenting Payment, or where contact was not maintained by regular correspondence or visits.

You will need a photocopy of the marriage certificate. If it is not in English, it will have to be translated. You may need your Naturalisation Certificate as proof of Nationality, depending on what ground you use to satisfy the jurisdiction requirements. See the Summary of documents you need to complete and file in the section "Filing - Step by Step" contained in Chapter 2 of the Family Court Practice Manual. The Divorce Kits also give details of what documents are needed.

Overseas marriages (and divorces) are recognized here. If you satisfy the ground for divorce here (irretrievable breakdown evidenced by 12 months separation) and the jurisdictional requirements, you can apply for a divorce here. The other party does not have to be in Australia. However, some complications may arise. The marriage certificate will have to be translated if it is not in English. There may also be problems serving documents on the other party overseas. In those cases, you will probably need legal advice.

Parties are separated when they stop living as husband and wife. This can happen when one party moves out of the former matrimonial home or the parties can be separated under the one roof provided certain requirements are met and you can establish to the Court that you both live separate lives

When the marriage has broken down irretrievably, as evidenced by a twelve (12) month separation. There is no time restriction on you obtaining a divorce. However, once your divorce becomes final, you only have 12 months in which to try to resolve property and spousal maintenance issues. If you have not resolved these issues within 12 months the court may refuse to give you leave to take court action in respect to these issues.

Yes. However, if you choose to oppose the Application, you must complete and file and serve a Response to Divorce Application. A common objection is a dispute in respect to the actual date of separation.

Yes. However, this is more difficult to establish to a court, and will usually mean obtaining legal advice on what additional documents are needed. Setting up separate bedrooms, and not doing any domestic chores for each other is a start. You will need witnesses who can confirm that the separation did in fact occur, and was not just "made up" to try to shorten the separation period.

Yes. The divorce kit obtainable from the Family Court allows for both parties to fill in the required details. If both parties are cooperative, this is the best and simplest way to obtain a divorce. There is only one document to complete and no need to serve papers on the other party, as both parties sign the application.

When separating, it is wise to seek legal advice so that you know what to expect when deciding issues such as arrangements for children, child support, spousal maintenance or property. You may need advice regarding whether you should apply in the Federal Magistrates Service or the Family Court for a particular matter.

You must arrange to serve the Application for divorce upon your ex partner. You cannot do so yourself. You must then obtain an Affidavit of Service from the person serving the application.

It will take about two months from the time you file your application for it to be heard by the court. If the other party is overseas, the time is a few weeks longer. The hearing itself lasts only a few minutes and is usually heard by a Registrar of the Family Court or a Federal Court Magistrate.

There is one ground only in Australia - namely, irretrievable breakdown. This is evidenced by a 12 month separation period. This usually means the establishment of two separate households. Fault (such as adultery, cruelty, etc) are not relevant to this issue. This is set out in Section 48 of the Family Law Act.