Separating from a spouse can be hard, but when it comes to the practicalities of divorce, put the tissues away and focus on getting through it without losing out. Here’s an easy guide to walk through the divorce process in NSW Australia.
Are you eligible to apply for a divorce?
You can apply for a divorce in Australia if you or your spouse:
• Regard Australia as your home and intend to live in Australia indefinitely
• Are an Australian citizen by birth, descent or by grant of Australian citizenship
• If you ordinarily live in Australia and have done so for 12 months immediately before filing for divorce
In Australia, the court doesn’t allocate blame or consider reasons for the marriage ending – our system is driven by ‘no-fault’ divorce.
The court does, however, require you to meet certain requirements: firstly, that you and your spouse have lived separately and apart for at least 12 months, and secondly, that there’s no chance your marriage can be repaired. You don’t have to live apart – you can live in the same home and still be considered separated.
How to apply
You can prepare a divorce application, or you can engage a specialist and experienced lawyer through a reputable firm like CM Law to work for you.
Once you’ve decided your approach, there’s the option of making a sole application (that is, applying for a divorce without your ex-spouse) or jointly with them.
Only you need to sign the Affidavit for eFiling Application (Divorce). Your ex doesn’t have to sign, but you must arrange for them to be ‘served’ with the documents by post or by hand. You cannot serve them yourself so you’ll need to arrange for someone aged over 18, like a family member or professional server (at a cost) to do this for you.
The documents to be served are:
- • Sealed copy of the Application for Divorce
- • Sealed copy of the Affidavit of eFiling
- • Copy of the Marriage, families and separation brochure
- • Any other documents filed with the Federal Circuit Court relating to your Divorce Application, (except any passport/citizenship/marriage certificates/reduction of fees form/concession cards filed)
- • Acknowledgment of Service (to be signed by your ex-spouse)
If your ex-spouse is in Australia, the documents must be served at least 28 days before the court hearing. If they’re overseas, the time limit is 42 days.
If there are no children, there’s no need to attend court. You will need to go to court if there are any children who are aged under 18.
You or your ex-partner can complete the application and send it to the other to review. Both of you must sign the Affidavit for eFiling Application (Divorce). There’s no need to serve an application, and there’s no need to attend court, even if there is a child under the age of 18.
Whether you choose a sole or a joint application, you must both sign the document in the presence of an authorised witness such as a lawyer or a Justice of the Peace.
Keep in mind that if you’re in a same sex marriage, you can still go through a divorce but you can’t apply online (this may change in time). For now you have to contact the Federal Circuit Court of Australia Family Law National Enquiry Centre.
Lodging a divorce application
You need a laptop or PC, printer and scanner, and these documents:
- • Marriage certificate – if you’ve misplaced it, call the NSW Registry of Births Deaths and Marriages. If you weren’t married in Australia and your marriage certificate is in a different language, you’ll need an authorised interpreter to translate it into English.
- • Australian citizenship certificate or passport
- • Credit card (to pay fees)
If you’ve been married less than two years, you will also need to attend counselling to discuss the possibility of reconciliation, and submit a counselling certificate with your documentation.
If there are children aged under 18, you’ll need to provide details about the arrangements, such as where they will live, schooling, contact, and financial support.
The divorce application is lodged through the Commonwealth Courts Portal – you’ll need to register first.
Costs associated with divorce
Applying for divorce to the Federal Circuit Court of Australia ranges from $305 (for holders of some government concession cards or if you can show evidence of financial hardship) to $910.
If you need to go to court, fees range from $400 for a conciliation conference to $640 hearing fee plus $640 each day thereafter.
On top of divorce and the question of who gets what, there may be other factors to consider, like orders relating to children, child support, a financial agreement, or a de facto relationship. However, those require a separate process as a divorce through court doesn’t finalise these arrangements.
There’s no doubt that a divorce can be a challenging time. For Sydney divorce lawyers who are on your side, Contact us at CM Law.