Divorce - Jano Family Law

Grounds for divorce

The Family Law Act 1975 (Cth) established the principle of no-fault divorce in Australian law. When granting a divorce, the Court does not consider why the marriage ended and the only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together.

Who can apply for a divorce?

You can apply for a divorce if either you or your spouse:

regard Australia as your home and intend to live in Australia indefinitely, or
are an Australian citizen by birth, descent or by grant of Australian citizenship, or
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated. If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

Fixed fee divorce

At Jano Family Law, we are able to provide you with a fixed fee divorce. Please see our Fees page for more details.

Enquire Online Now

Separated under one roof

It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as “separation under one roof”. If this applies to your situation, you will need to provide a detailed affidavit to the Court.

Married less than two years

If you have been married less than two years you will need to file a counselling certificate. To obtain a certificate you will need to attend counselling. If you are unable to attend counselling with your spouse, you will need to provide a detailed affidavit. The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.

Married overseas

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:

regard Australia as your home and intend to live indefinitely in Australia, or
are an Australian citizen or resident, or
are an Australia citizen by birth, descent or grant of an Australia citizenship, or
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file an English translation of it, and an affidavit from the translator.

Do I need to attend the divorce hearing?

Certain situations will require you or your lawyer to attend Court for the divorce hearing, typically when you are making a sole application and there are children under 18.

Opposing a divorce application

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:

there has not been 12 months separation as alleged in the application, or
the Court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in Court on the hearing date. It is recommended that your lawyer appears in Court on your behalf.

If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce. You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct.

How your family lawyer can help

To minimise stress and make sure you get it right, it is best to involve an experienced family lawyer. Whether you make your divorce application by yourself or jointly with your estranged spouse, your lawyer will advise you, assist you and ensure you get it right.

It is especially important to seek legal advice and assistance if:

You are separated under one roof.
You are applying by yourself (sole application).
There are children under 18.
Your spouse unable to be located or served.
You were married overseas.
There is property to be divided or superannuation to be split.
You need advice about spousal maintenance.

The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. These are separate matters which your family lawyer should advise you about.

Divorce FAQ

Helpful answers to frequently asked questions about divorce.

What do you charge for divorce?

Jano Family Law is a fair fee and fixed fee family law firm. Please visit the Fees page for current fee details.

Prior to commencing any work we will always provide you with a Costs Disclosure or a Costs Agreement as required under the Legal Profession Uniform Law.

What is the court filing fee for divorce?

The court filing fee is currently $930. If you have a health care card, you can get a reduced filing fee.

How can I get a divorce?

To legally end a marriage, you need to apply to the Federal Circuit Court for a divorce. Orders about property and children are not dealt with as part of a divorce application, so separate applications for these orders need to be made if you need them.

To get a divorce, you need to prove to the Court that:
– You have a valid marriage by providing your marriage certificate or equivalent documentation;
– Your marriage has broken down and there is no chance you will get back together. This is called an ‘irretrievable breakdown’ of your relationship;
– You have been separated for 12 months;
– You are an Australian citizen, a permanent resident or have been living in Australia for at least 12 months before applying for divorce.

What does ‘separated’ mean?

You are separated from the day either person tells the other person the marriage is over. You can get back together for up to three months without re-starting the 12-month separation period. However, the time you spend back together does not count as part of the separation.

Example: if you separate for two months, get back together for one month and then separate again, the Court will consider that you have been separated for two months, not three months.

You may be able to get a divorce if you and your partner have separated but still live in the same house for financial or other reasons. This is called ‘separation under one roof’. When you apply for a divorce, you will need to prove that your marriage has ended and you and your partner live separate lives.

Example: you sleep in separate rooms, do not cook dinner or do laundry together, and do not go out as a family, or eat and entertain together. To prove ‘separation under one roof’ you will need friends or family to sign an affidavit to tell the court about your separate lives. Children over 18 can do this affidavit. The affidavit is best prepared by a lawyer to ensure there are no problems with its acceptance by the court.

What if I was married for less than two years?

If you have been married for less than two years, you need to consider family counselling to discuss reconciliation before you apply for a divorce. If your partner is violent and you are afraid of them, discuss this with the counsellor when you make a reconciliation appointment. If you are unable to attend counselling with your spouse, you will need to file an affidavit and ask for the Court’s permission to divorce.

If your partner will not attend counselling, you may still get your divorce by applying for permission, called ‘special leave’, from the court.

What are the steps involved in getting a divorce?

You have the option of doing it yourself or asking your lawyer to do it for you, in certain cases the need for a lawyer is greater than in other cases.
A summary of the steps involved in getting a divorce is set out below:

1. Complete an application for divorce form. Most divorce applications are now completed online. You can complete the interactive divorce application form and find more information online. You will need to upload certain documents into the online Commonwealth Courts Portal system. These documents include your marriage certificate, and a copy of your Centrelink pension card or health care card (if applicable).

2. File your application. Once you have completed the online application, you need to print the application and sign the Affidavit of e-Filing before an authorised witness (such as a Justice of the Peace or a Lawyer). If you are filing a joint application, both you and your spouse will need to sign the affidavit (this can be done separately).

Once you have signed the Affidavit of e-Filing in front of an authorised witness, you need to upload it onto the online system and pay the court filing fee or apply for a reduction of the fee. When you file your application, you will be able to select a ‘hearing date’ for when your case will be in court.

You will need to print the completed Application and also the Marriage Families and Separation brochure.

If you have completed a sole application, you will need to print two copies of the documents. One for you and one to serve on your partner (discussed below). If you have completed a joint application, then you will only need to print one copy of the documents, and this is just for your records.

3. Serve the application on your partner. You will need to serve the following documents on your partner:

– A sealed copy of the application for divorce;
– A copy of the Marriages, Families and Separation brochure;
– Any other documents filed with the court, except the copy of your marriage certificate;

You can serve the documents on your partner in two ways:

– Service by post: If you are confident your partner will sign and return an Acknowledgment of Service form, you can serve by post. Without a signed Acknowledgment of Service form, the court cannot be sure your partner received the documents.
– Service in person: You cannot serve the documents on your partner yourself. You can get a friend or relative aged over 18 to deliver the documents, or use a professional process server.

Your partner must be served at least 28 days before the hearing date if they are in Australia or 42 days before the hearing date if they are overseas.

4. File the service documents. You must prove to the court that your partner has been served with your Divorce Application by filing an Affidavit of Service and the signed Acknowledgment of Service form if it has been signed by your partner. You will need to scan and upload those documents onto the online system, the Commonwealth Courts Portal.

If you cannot apply for your divorce online (i.e. you do not have computer access or anyone who can help you) you can still apply for a divorce by using a paper form. The Federal Circuit Court can give you this form.

5. The Court hearing. Whether you need to go to Court depends on your situation:

– No children under 18: If there is no child of the marriage aged under 18 years, you are not required to attend the Court hearing. This applies for both sole and joint applications.
– Joint application with children under 18: If you have made a joint application, you and your spouse are not required to attend the Court hearing (even if there is a child of the marriage aged under 18).
– Sole application with children under 18: If you have made a sole application and there is a child of the marriage aged under 18 years, you (the applicant) are required to attend the court hearing. It is recommended that your solicitor attends with you to handle the hearing.

When you arrive at Court, there will be a list of cases on display in the court building. A Court attendant will direct you to the right courtroom. A Court officer will call your name when the Court is ready for your case. If you have no representation, tell the Judge you are the ‘applicant’ and you want the court to grant your application for divorce. If you have a solicitor, they will tell this to the court, you will not need to speak. The Judge will ask questions and your solicitor will answer these on you behalf.

1. The Court makes its decision The Court can:
2. Grant your divorce;
3. Grant your divorce but refuse to make it final until proper parenting arrangements are made;
4. Adjourn your case. This means the hearing is put off to another day so you can give the Court better evidence that your partner was served or for another reason;
5. Refuse or dismiss your application.

If the Court is satisfied there are grounds for divorce and proper parenting arrangements are in place, it will make a divorce order. The divorce order usually becomes final one calendar month later and is called a final divorce order. The Court can decide to shorten the time in which the divorce order becomes final. The court will send you a sealed copy of the final divorce order, which is proof you are divorced.

What if I cannot find my partner?

The Court will require proof your partner has been served with (given a copy of) the divorce application. If it is impossible to send a copy of the divorce application to your partner, the court can agree to waive this requirement. You must prove you have tried to find your spouse, including through their family or friends or place of work if you know this. If you know where one of your partner’s relatives lives, the Court can order you serve that person instead of your partner. If you cannot find your partner, you will need to make a separate application to the Court about this. You can either make an application for substituted service, so you can serve the application on someone else, or an application to dispense with service altogether.

What if my partner is overseas?

You can serve your partner by post or in person with the assistance of a process server. The Court can also order some other type of service, such as substituted service (service on a relative).

If I was married overseas, can I still apply for a divorce in Australia?

If you were married overseas, you can apply for a divorce in Australia on the same basis as Australian marriages. Evidence of the foreign marriage must be by an official extract from the foreign registry of marriages. If the official extract is not available, an affidavit explaining the reason for divorce must be filed.

What if I do not want a divorce but my partner has started proceedings?

In generaly, you or your partner can choose to divorce whether the other person agrees to or not. There are only limited grounds on which a divorce application could be opposed. You will need to contact your lawyer to discuss this.

What if my partner files for divorce and makes statements I disagree with in their application?

You can file a response, putting your side of the story in a statement. If you file a response you must go to Court for the hearing. It is best to have your story on the record, as the divorce application will remain as evidence in the Court file.

What if I cannot find my marriage certificate?

If you do not have your marriage certificate, you can order a certified copy from the Registry of Births, Deaths and Marriages in your State. The current fee can be found by contacting the relevant Registry.

What if I need my marriage certificate translated?

If your marriage certificate is not in English, you will need to have your marriage certificate translated into English by a certified translator. The translated version of your marriage certificate must be filed at the Court with an affidavit by the translator stating they are competent to make official translations.

When can I get married again?

Your divorce order becomes final once month after the divorce hearing, then you can legally remarry.

What about my will?

You should make a new will when something big changes in your life like marriage, divorce or the birth of a child. You should get legal advice to update your will.

Please be aware: When you get married, your will is automatically cancelled unless that will was stated to be made in contemplation of the marriage.

A divorce does not automatically cancel a will so it is wise to get your will reviewed to ensure your wishes are recorded.

When can I get a property settlement?

You can make a property settlement any time after you separate. Once a divorce becomes final, you must apply to the Court within 12 months if you need a property settlement or spousal maintenance. If your partner applies for divorce, seek legal advice to get a property settlement if you have not already done so. Sometimes you can get leave of the Court to apply out of time for property orders. You should get legal advice about this.

Divorce is simply the legal dissolution of a marriage, it does not deal with the issues of child/parenting, child support, finances/property, or spousal maintenance.

What about arrangements for child parenting?

Divorce is simply the legal dissolution of a marriage, it does not deal with the issues of child/parenting, child support, finances/property, or spousal maintenance.

You will need to make child parenting orders by consent or apply to the Court for orders if you cannot agree on the arrangements.