Applying for a divorce

It is relatively straightforward for a party to apply for a divorce themselves, either by filing hard copy documents or by electronically filing their application via the Commonwealth Courts Portal (CCP). In order to e-file their application, a party needs to firstly register with the CCP, be able to upload the necessary supporting documents and pay the application fee using a credit card.

Most applications can be done electronically using the CCP although it should be noted that currently, same sex applications cannot be done via the CCP.

Slightly different requirements apply depending on whether it is a sole or a joint application. All divorce applications are commenced in the Federal Circuit Court or, in Western Australia, the Family Court of Western Australia. The following documents are required to be e-filed () via the Commonwealth Court Portal:

If a party seeks a divorce from their spouse, the following documents are required to be e-filed in the Federal Circuit Court (or, in Western Australia, the Family Court of Western Australia) via the Commonwealth Court Portal:

• • completed Application for Divorce (online application form on the Portal);
• • a copy of the Marriage Certificate;
• • filing fee or an application for a reduced filing fee; and
• • additional documents may be required in certain circumstances including:
• • ◦ where the application is filed within 2 years of the date of marriage (counselling certificate);
• • ◦ where an application to dispense with service or for substituted service is made (affidavit of service); and
• • ◦ where separation under the one roof is relied upon (supporting affidavits).

See Divorce procedure.

Serving documents

At the time the documents are filed a hearing date will be allocated. Normally, the hearing date will be about eight weeks after the date of filing if the respondent resides in Australia or 12 weeks after the date of filing if the respondent resides overseas.

A sealed copy of the application for divorce must then be personally served on the respondent. In addition, a sealed copy of any supporting applications and affidavits that have been filed must also be served with the application for divorce.

If the respondent is present in Australia, the documents must be served at least 28 days prior to the hearing date. If the respondent is overseas, the documents must be served at least 42 days prior to the hearing date.

Proof of service is required to be filed with the court, usually by way of an affidavit of service.

See Service requirements and Service overseas.

If the applicant does not know the whereabouts of the respondent, the applicant may make an application to the court either to have the requirement for personal service dispensed with all together, or alternatively, to seek an order for substituted service of the documents on a third person who, it is believed, has regular contact with the respondent and is able to bring the documents to the respondent’s attention.

See Dispensing with service and Substituted service.

Response to divorce

If the respondent wishes to dispute any of the statements of fact set out in the application for divorce (in particular, the date of separation) the respondent must file a response to divorce with the Federal Circuit Court prior to the hearing date. There is no filing fee payable in respect of a response to divorce.

The response must then be served on the applicant by forwarding a copy of the response to the address for service shown on the application for divorce.

The respondent must then attend court on the hearing date, otherwise the response will not be considered by the court and the application for divorce may be considered in the respondent’s absence.

See Divorce procedure — Response.

Attendance at court

When completing the application for divorce, there is an option for the applicant to indicate whether they wish to attend the hearing of the application for divorce. If there are children under the age of 18 years the applicant (or their legal representative) is required to attend on the hearing date to address any questions the court may have regarding the care and welfare of such children.

When the matter is called, the presiding registrar will consider all documents filed on behalf of both parties and will then proceed by either:

• • granting the divorce; or
• • by giving such directions to provide evidence as are necessary to satisfy the court that all procedural requirements have been met or dispensed with.

If the respondent asserts that the parties have not been separated for a period of 12 months, then the registrar will usually make directions that both parties file evidence in respect of the circumstances of separation and will then transfer the matter to a judge of the Federal Circuit Court (or, in Western Australia, a judge of the Family Court of Western Australia) for defended hearing on another day. The registrar does not have the power to hear a defended application for divorce.

If the court proceeds to grant the divorce, the court must:

• • be satisfied that the marriage is proved and the court has jurisdiction to hear the matter: see Domicile, citizenship and ordinary residence;
• • be satisfied that there has been an irretrievable breakdown of marriage: see Separation for 12 months prior to filing;
• • be satisfied that service has been effected: see Service requirements; and
• • make a declaration regarding the care and welfare of any children of the marriage, which can be:
• • ◦ that there are no children of the marriage under 18 years of age; or
• • ◦ that there are children under the age of 18 years (who must be specified) and that the court is satisfied that proper arrangements for the children have been made; or
• • ◦ that there are children under the age of 18 years and there are circumstances by reason of which the divorce order should be made even though the court is not satisfied that proper arrangements have been made: see Divorce and the care and welfare of children.

Practice Tip: Proper arrangements does not mean “ideal” or even arrangements that both parties are happy with or consent to. It is common for parties to divorce where, for example, care arrangements for children are being negotiated or contested. The court just really wants to know that the children are being cared for and that arrangements for their longer term care will be sorted out.

Once a divorce is granted, it will usually become final one month after the divorce hearing after which the divorce order, can be provided by the court or will be available from the Commonwealth Courts Portal website.