Divorce Applications

Filing for divorce
Posted on 29 July 2019

Separating from your partner can be a difficult and confusing time in your life. The process of filing for divorce can also be difficult and confusing. We try to make things simple for you by giving a summary of the requirements before filing for divorce, the types of divorce applications, fees associated with filing for divorce and what happens after divorce.

Requirements before Filing

There are certain requirements that must be met before applying for divorce.

Citizenship/Intention to Stay

At least one of the parties to the marriage must:

1. Have been born in Australia or have become an Australian citizen by descent; or

2. Be an Australian citizen by grant of Australian citizenship; or

3. Be legally in Australia, have lived here for the last 12 months and intend to stay in Australia.

Irretrievable Breakdown of Marriage

The marriage must have broken down irretrievably. That means that you have separated and lived separately for 12 months and there is no reasonable likelihood of getting back together. Although, if you have separated but continued to live together, you can still meet the requirements under the ‘separation under the same roof’ rule.

Counselling

If you have been married for less than 2 years, you will normally be required to go to counselling with your spouse and get a counselling certificate. However, you might not be required to go to counselling if you have experienced domestic violence or abuse during the marriage.

Marriage Certificate

You will also need to provide your marriage certificate. If your marriage certificate is from another country and in another language, it must be translated by an accredited translator.

Types of Applications

Divorce applications can be made in 1 of 2 ways:

1. Sole application (only one of the parties in the relationship applies for divorce); or

2. Joint application (both parties in the relationship apply for divorce).

Sole Application

As the Applicant, you will be required to fill out and sign an Affidavit for divorce. You will need to serve the Affidavit on your spouse, known as the Respondent. The Respondent does not need to complete an Affidavit.

If you have a child or children together and at least one of them is under 18 years old, you will be required to attend court during the divorce application. If you do not have children together, you do not need to attend court.

Joint Application

In a joint application, both parties must sign an Affidavit for divorce. You do not need to serve the Affidavit on each other.

You do not need to attend court when filing a joint application unless you choose to do so.

Both types of divorce applications can be filed online through the Commonwealth Courts Portal.

Fees

You will need to pay a court filing fee for any divorce application. The court filing fee for a divorce application is $910.

You may be able to pay the reduced fee of $305 if any of the following eligibility criteria applies to you:

1. You hold a healthcare card, pensioner concession card, Commonwealth senior’s health card, any other card issued by the Department of Human Service or any other card issued by the Department of Veteran’s Affairs.

2. You have been granted Legal Aid;

3. You are receiving youth allowance, Austudy or ABSTUDY;

4. You are under 18 years old;

5. You are an inmate in a prison; or

6. You would be caused financial hardship if you were to pay the full fee.

For sole applications, only the Applicant needs to meet the eligibility criteria in order to pay the reduced fee. For joint applications, both parties need to meet the eligibility criteria to pay the reduced fee.

After Divorce

After the divorce is granted by the Court, it will be finalised after 1 month and 1 day. This is important to note especially if you intend to remarry soon after your divorce.

Also, remember that a divorce does not determine who gets which property or who the children will live with. These issues can be dealt with by consent if you agree with your spouse about who gets what. If you cannot come to an agreement, these issues can be dealt with by application to the Court for property settlement orders or parenting orders.

If you need help with any matters of divorce, property settlement orders or parenting orders, feel free to call us on (02) 9299 9931.