Sydney’s leading divorce lawyers, the specialists at Owen Hodge Lawyers, guide you step-by-step through the process for applying for divorce in New South Wales.
 

Who can apply for divorce?

 
Only married individuals can apply. You do not need to have been married in Australia in order to apply for divorce. A certified copy of your marriage certificate must be filed with an Application for Divorce. If necessary, a certified translated copy of the Marriage Certificate.
 

What conditions must be met to apply for divorce?

 
Pursuant to the Family Law Act 1975, the following are required:
 

  • Your marriage must have broken down irretrievably meaning that there is no reasonable likelihood that you and your spouse will get back together
  • You and your spouse must have been separated for at least 12 months before applying for divorce
  • One of the following requirements must be met by either you or your spouse:
    • You consider Australia to be your home country and intend to live there indefinitely
    • You are an Australian citizen, meaning any one of the following:
      • You were born in that country
      • You are from Australian descent
      • You were granted Australian citizenship
    • You currently live in Australia and have been living there for at least 12 months before applying for divorce

What is the process for applying for divorce?

 
It is important to note that Divorce, meaning the nullity of a marriage, is completely separate from property and parenting family law matters which may be dealt with prior to and independently of divorce proceedings. One major factor to note regarding divorce is that the date a divorce order is made starts an important 12 month time limit. A party to a marriage can only initiate proceedings in one of the Family Law Courts for property orders within 12 months after the date of divorce, except with special permission from the Court. The process of Divorce is straightforward, and is made easier with the help of an experienced divorce lawyer:
 

Step 1: Separate From Your Spouse

 
You and your spouse must have been separated for at least 12 months before either of you apply for divorce. Separation means the ceasing of all financial, physical, and social relations with your spouse. It is not required that one of you move out of the residence within those 12 months in order to apply. The Court may require evidence that all normal spouse activities have stopped (e.g. household duties for each other, baking, cooking, laundry, and sleeping in the same bed) and that family, friends, and society do not view the two of you as a married couple if:
 

  • You and your spouse separated, but you both are still living together within 12 months of applying for divorce
  • You and your spouse separated, but remained living together for any period of time within 12 months of applying If you have been married for less than two years, the Court will require you and your spouse to attend marriage counselling with an approved counsellor.

What if the additional evidence cannot be proven to the Court?

 
Then Court may rule that separation did not take place. You and your spouse will then be required to physically separate from each other for 12 months before applying again.
 

What if we separate, reconcile, and then separate again?

 
Then the separation period will pick back up from the date of reconciliation. For example, if you and your spouse separate for three months, and reconcile for the next four, and then separate again, you have nine more months of separation before you can apply.
 

Step 2: The Divorce Application

 
Neither of you need to be in Australia at the time of application nor at the time when the Court deals with the application. However, if there are children under the age of 18 years then the parties are required to attend the short divorce hearing. You can either apply for divorce by yourself (sole application) or with your spouse (joint application). You must complete an Application for Divorce form to apply for divorce. There are two options:
 

  • Download and complete the application from the Federal Circuit Court of Australia website (Divorce Form). You will find instructions and other useful information on that site.
  • Complete the application online at www.comcourts.gov.au.

What do I need to provide with my Application?

  • Either your original Marriage Certificate or a certified copy
  • One of the following Court filing fees:
    • A flat fee of $800.00
    • A flat fee of $265.00 only if you can prove one of the following:
      • Substantial financial hardship
      • You are in receipt of a Commonwealth benefit or pension

    What happens after I file a sole application?

    • An individual other than yourself must present the application to your spouse no later than 28 days prior to the date of the divorce hearing
    • Your spouse must sign an Acknowledgement of Service form to prove they received the application o If your spouse refuses to sign, you must provide their photograph
    • You must sign an Affidavit of Proof of Signature which proves that you have verified the signature by your spouse
    • The person who delivered the application to your spouse must then sign an Affidavit of Service which shows the process and date of delivering the application to your spouse
      • If your spouse refused to sign an Acknowledgement of Service form, the person who delivered the application must confirm that the application was delivered to your spouse
      • All of these documents must then be filed with the Court before your hearing date

    What if I don’t know where my spouse is?

     
    You can still apply for divorce, but the Court will require that you have at least attempted to locate your spouse by doing the following: • Sending mail to their last known address o The Court will require to see receipts for registered mailings • Asking family and friends about their location o This must be shown in Affidavits • Placing missing person ads in newspapers o You must provide the Court with the newspaper ads
     

    Step 3: The Divorce Hearing

     
    Your Application will be given a hearing date after it is filed. At the hearing, the Court will decide whether all evidence has been provided. If you applied by yourself, the hearing will take place usually within two to three months after the application is filed. If you applied jointly, it will take place usually within two months of the application date. You must attend the hearing if:

    • You and your spouse have children under the age of 18
    • You and your spouse separated, but lived together for any period of time during the 12 month time frame

    What happens at the hearing?

     
    1. Report to the Court officer. Provide them with your name and they will confirm your attendance.
    2. Go to the Court room. The Court officer will call your name when your case is ready. If you prefer, your lawyer can attend the hearing on your behalf.
    3. You might be asked questions by the Registrar regarding your application.

    • If you and your spouse have children under the age of 18, the Registrar might ask about their living arrangements, which parent they currently live with, how they spend time with their parents, how they will be supported financially, etc.

    Step 4: The Court’s Decision

     
    Whether you applied jointly or by yourself, the Registrar will grant your divorce if they are satisfied that all grounds for divorce have been established. If you applied by yourself, the application must be served on your spouse in order for the Registrar to grant your divorce.
     

    When will the divorce be final?

     
    Whether you applied by yourself or jointly, the divorce will be final one month and one day after the date of the hearing. Be sure that you and your now former spouse provided the Court with your current addresses because the Divorce Order will be sent to you both.
     

    What if I am in a de-facto relationship?

     
    Separating partners do not need to divorce in these relationships. Therefore, the 12 month time frame does not apply. The parties in this relationship must apply, with permission of the Court, for financial orders within 2 years of the relationship breakdown date. Are you and/or your spouse considering applying for divorce? Do you need assistance with your divorce application? If you need further assistance with these family law matters and/or are in need of legal representation, please contact Owen Hodge Lawyers for a consultation with our Sydney-based divorce lawyers on 1800 70 780.

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