Divorce Application

A Divorce Application is an application form that you lodge with the Family Law Court to legally end your marriage. In Australia there is no requirement to prove anyone is at fault when applying for a divorce. You need only show that you have been separated from your spouse for at least 12 months and that there is no chance of reconciliation.

Prior to the Family Law Court granting a divorce a couple should have agreed how to split their financial assets and obligations plus custody of any children. These matters can be agreed during the 12 months prior to lodging a Divorce Application and laid out in a Separation Agreement. If agreement can’t be reached, even after mediation, the Family Law Court will make a determination.

The Divorce Application forms are free and can be found online. Website links are provided in the answer to the last FAQ, found at the bottom of this page.

Below is a list of some of the most frequently asked questions about Divorce Applications and Separation Agreements. Click on any of the questions to reveal the answer.

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How do I apply for a divorce?

You can apply for a divorce by completing and then lodging a Divorce Application form with the Family Law Court (or Federal Magistrate’s Court) of Australia. This process may be done online and both Courts use the same Divorce Application form.

Lodging the Divorce Application with the Family Court of Australia involves a fee of $550 (as at December 2010). Reduced application fees are usually available to people who are experiencing hardship.

What is required to have a Divorce Application approved?

You and your spouse need to have:

• Agreed how to split your financial assets and obligations with a Separation Agreement (strictly speaking this is not a court requirement but is highly recommended)
• Agreed custody of any minor (under 18) children
• Not lived together (or have lived together but separately) for at least 12 months, and
• No likelihood of a reconciliation or returning to your marriage

Splitting financial assets and ongoing financial obligations (for example, paying school fees for any children) can be agreed during the 12 months prior to lodging a Divorce Application and documented in a Separation Agreement.

If agreement can’t be reached after mediation, the Family Law Court will make a determination prior to granting a divorce.

Do I need to explain why I am seeking a divorce?

No. In Australia we have ‘no fault’ divorce – meaning that the Courts do not require any reason to be given when seeking a divorce. The Court only needs to be convinced that there is no reasonable likelihood of a reconciliation and that you have been separated for at least 12 months.

What is the process for lodging a Divorce Application?

Lodging a Divorce Application takes a little time and needs to follow the set guidelines of your chosen Court. In the case of the Family Law Court the steps are as follows:

1. Ensure you have a Separation Agreement prior to applying for a divorce
2. Download and complete the Divorce Application form from the Family Law Court website (see website links at the bottom of this page)
3. Lodge the Application (and any other documents) with the Family Law Court
4. Serve a Court stamped copy of the Divorce Application (and any other required documentation) on your spouse
5. File proof (as specified by the Court) with the Family Law Court that you have served your spouse

The Family Law Court will then send you and your spouse confirmation of your divorce (called a Divorce Degree). You will only need to attend a divorce hearing if there are minor children involved or you or your spouse want to contest the Divorce Application.

The process will become complex and more lengthy if you and your spouse do not agree on the terms of your divorce.

What if I can’t reach a financial or custody/parenting agreement with my spouse?

The Family Law Court will make financial, custody and parenting determinations, but only after a prescribed procedure has been followed. They don’t want you wasting Court time or running up Court costs.

In the case of a financial determination, you will need to show you have attempted a Settlement Agreement, mediation and “written notice and response” to resolve the issues.

In the case of a custody and parenting determination, you will need to show you have tried family dispute resolution, applied for consent orders, “written notice and response” and notified your spouse of your intention to start a Court claim (including the disputed issues, the Court orders you are seeking and a genuine resolution offer).

All this must be done before applying to the Court for any Court order of financial or custody and parenting issues. The upside is that these procedures may enable you to avoid going to Court at all.

Does the Court decide our financial and custody settlement at the time of my divorce?

No. The Family Law Court only grants a divorce. It does not decide at this time any financial settlement or custody/parenting agreement.

If you want to settle these issues, you need to either agree a Separation Agreement (including child parenting arrangement) or, if you cannot agree, apply to the Court for a determination.

Can the financial Separation Agreement be changed after the divorce?

The financial aspects of the Separation Agreement can be changed at any time if you and your spouse agree. However, you only have a window of 12 months of the divorce becoming final to contest any financial aspects of the Separation Agreement.

What if I don’t want to get divorced?

There are really only 2 reasons you can oppose a divorce:

1. Show that you have not been separated for 12 months, or
2. Prove that the Court does not have jurisdiction to grant your divorce (for example, you and your spouse do not live in Australia and do not have citizenship)

Otherwise there is very little you can do to oppose a Divorce Application.

If you do want to oppose the Divorce Application, you need to file what is called a “Response to Divorce” within 28 days of receiving the Divorce Application from your spouse. You will need to attend the divorce hearing on the notified date. If you do not attend, the Court will decide the matter without you.

What if I can’t contact my spouse?

If you can show you have taken reasonable steps to contact or serve your Divorce Application on your spouse unsuccessfully, then you can apply to the Court for “Substituted Service”. This means you can send the Divorce Application to a relative or friend of your spouse whom you have reason to believe will give it to them.

If this fails or is not possible, then you can apply to the Court for “Dispensation of Service”. This means you have tried everything reasonably possible to locate your spouse but cannot locate an address or other contact details for them.

Do I have to attend the divorce hearing?

Yes. If you have children under 18 and have made a ‘single’ application (i.e. not a ‘joint’ application) or the divorce is being disputed then you will have to attend the divorce hearing. There will not be a divorce hearing if the divorce is not disputed or you do not have children under 18.

What if I was not married in Australia, can I still apply for a divorce in Australia?

You can apply for a divorce in Australia in these 3 instances:

1. Either you or your spouse is an Australian citizen
2. You have lived in Australia for the past 12 months, or
3. You regard Australia as your home country and intend to live there permanently

Where can I download a Divorce Application form?

You can download a Divorce Application form from the Family Law Court website here.

Useful information about divorce on the Federal Magistrates Court of Australia website.

Residents of WA may prefer to deal with their local Family Court of WA here.

The Family Law Court also has an enquiry telephone number: 1300-352-000.

Residents of WA have their own enquiry numbers: 1800-199-228 or 08-9224-8222.

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