How Do I File for Divorce In Australia?

family lawyers perth

Divorce can be defined as the legal termination of a marriage, but what is often overlooked is just how difficult and stressful the process can be.

A few basic facts can help you understand what to expect when you’re considering a divorce. As Perth family lawyers, we have written this article to help simplify the process and provide clarity where possible.

The Divorce Procedure in Perth

The Federal Circuit Court of Australia and the Family Court of Western Australia have the power to grant divorces under Part VI of 1975’s Family Law Act 1975. If you meet the requirements to file for a divorce in Australia, you may choose to either apply for a separation on your own, or jointly with your spouse.

These links provide detailed instructions from the court on how to apply for a divorce:

Federal Circuit Court of Australia

Family Court of Western Australia

These tools allow you to either prepare your divorce application yourself or hire a Perth family law firm to help you.

You can apply for a divorce in all Australian states. However, if you live in Western Australia, you will file at the Family Court of Western Australia. For all other states, you will file at the Federal Court of Australia.

What is a No Fault Divorce?

The Family Law Act 1975 established a no-fault divorce principle in Australian Law. This means that a court doesn’t consider who is responsible for the breakdown of the marriage. The grounds for divorce are that the marriage has ended (the “why”) is irrelevant and that there is no reasonable chance that the parties will reunite.

Do you Meet the Eligibility Requirements?

To get a divorce in Australia, one must meet these eligibility requirements:

  • The marriage must have ended irrevocably.
  • Arrangements must be in place for children.
  • The parties must have been apart for at least 12 months.
  • A person must meet the residency or citizenship requirements.
  • A person must pay the required filing fee.
  • If a couple has been married less than two years, they must attend counselling.

The Minimum Period of Separation

Once a spouse has been separated for one year or more, one party can apply for a divorce. If the spouses have not separated but remained together after their separation, they will need to prove that they lived apart during that time. An affidavit, which is your written evidence, can be filed by the party making the request. It will show that the parties have lived separate lives by keeping their finances separate and paying their own expenses. The affidavit also shows how the public, including family members, perceives the separation.

An affidavit may be necessary to add another witness, as it will help to confirm that both parties live separate lives under the same roof. For example, a friend or close relative who has continued to spend quality time with each party.

The applicant (or joint application) must confirm that the marriage has irretrievably ended, meaning that there is no chance that the couple will ever get back together.

If children are under 18 years of age in the marriage (any child that was treated by the parties as a member of their family immediately prior to the separation), then the parties must show that they have made appropriate arrangements for the child’s welfare and development. Divorce proceedings are separate to Children and property issues as these require separate applications to the Court. An application for divorce is made to grant both the petitioner and the respondent a divorce so that they can remarry if they choose.

What are Common Divorce Expenses

As of March 20, 2021, the court charges $940 for processing a divorce application. If all applicants meet the requirements, fees are reduced to $310. For more details, click below.

Federal Circuit Court of Australia Fees

Family Court of Western Australia Fees

If you or your partner are eligible to receive concessions, or you are in financial hardship, you can get a discount on fees.

The 3 Steps of Applying for a Divorce

1. Filing a Divorce Application

The Federal Circuit (Family Court of Australia) has the jurisdiction (that’s, the power) to dissolve a marriage and grant a divorce under Part VII of the Family Law Act 1975. You can either prepare and file a divorce application by yourself or hire a Perth family law firm.

You will need to register on the Commonwealth Courts Portal to submit your application. This will enable you to create a file in the Commonwealth Courts Portal, upload documents, and receive the final court order. Access to equipment is required to file yourself. This includes a scanner, a printer, and the ability to pay online using a Visa debit or Mastercard.

One person may apply for a divorce along with their spouse (a “joint application”), or only one person (a “sole application”).

2. Approving or Swearing to the Divorce Application

Once you have completed the application for divorce form, you must swear or affirm the form before a lawyer or other person is allowed to witness your signature. Before you select a witness, ensure that you have reviewed the legislation in your territory or state.

3. Serving the Application for Divorce

If you do not file jointly, the other person will be served with the application. This is not something you can simply post to the other party-it must be personally served.

Am I Required to Attend the Divorce Hearing?

You don’t have to attend court hearings if

  • The marriage does not have a child under the age of 18 years.
  • You and your spouse have submitted a joint application (even if the child of the marriage is younger than 18).

If you’ve made a sole application, and there is a minor child from the marriage under 18 years of age, you will need to be present at the court hearing. You may request the court to appear by phone if you find it difficult to travel to the court.

Do I Need a Lawyer?

An application for divorce can be made and granted without the need to have either spouse engage a Perth family lawyer. You may find it helpful to seek legal advice beforehand regarding your specific case as divorce and any associated property settlement can significantly affect your legal situation.

Burra-Robinson Family Lawyers Can Help

Perth family lawyers, Burra-Robinson Family Lawyers are committed to helping you file your divorce application in the most cost-effective and time-efficient manner possible. Get in touch today; we are here to help.