Deciding to divorce is often a non-linear journey, with emotions and complex decisions creating a time of uncertainty for both parties. The process of lodging a divorce application is, however, straightforward when you have appropriate representation and are informed of the steps required. With circumstances changing and anoverwhelming road ahead, it is critical that you have consistent support through every stage of your divorce proceedings from a trusted family law professional.
This guide will explore how to file a divorce application in Australia, from start to finish. Like most legal matters, outcomes and processes will depend on the unique circumstances in question, and so the steps covered in this guide may vary to some extent. We will also cover when and how you can work with your family lawyer to reach a fair and outcome, in or out of court.
Divorce in Australia
Hollywood and overplayed stereotypes have a lot to answer for when it comes to divorce misinformation. Before you file a divorce application, you and your partner must be eligible under Australian law, and only then will the application successfully progress. This means that one or both parties must be Australian citizens and have lived legally in Australia for more than 12 months. A valid marriage certificate must also be held and presented when filing for a divorce. The validity of a marriage certificate is determined by the Australian Courts as a union entered by parties 18 years or over and authorised by a marriage celebrant.
Contrary to popular belief, both parties must be separated for a minimum of 12 months and one day before pursuing a divorce. Australian Courts defines separation as one or both partners communicating that they no longer wish to remain in a relationship. Regardless of whether it is agreed upon by both parties and if they still live at the same dwelling together, separation is counted from that date. Similarly, partners may still have shared financials during a separation period if necessary and it is still determined to be a valid separation.
The 12-month separation period, as dictated by the Family Law Act, is in place to encourage married individuals to consider this decision and understand what the next steps are and the future post-divorce. When this 12-month separation period has been satisfied, and a valid marriage certificate has been sighted by the two parties, the Court will grant a Divorce Order.
If you are unsure whether you are eligible to file for divorce in Australia, it is recommended that you work with a family lawyer to determine the next steps for you.
What Are the Documents Needed to File a Divorce?
Now that we have covered the qualifying factors, we can explore the documents needed to file a divorce. Before a divorce is granted by the Courts, an application needs to be signed and submitted through an online platform known as the Commonwealth Courts Portal. The Federal Circuit Family Court of Australia and the Federal Court of Australia launched the Commonwealth Courts Portal. It was designed to give individuals and families access to applications, forms, and information. This is a secure portal that can be accessed at any time through the divorce application process.
Commonwealth Courts Portal Divorce Application Process
When you have registered for the Commonwealth Courts Portal, you can follow these steps to apply for a divorce.
- Click “New File” to commence your application.
- Confirm you are lodging the application on your behalf.
- Read the eFiling obligations and confirm that you agree.
- Select “Application for divorce” from the listed options.
- Find and select the court location from the options listed.
- Label your application with a title and description and click “Create.”
- Answer the prompted questions and upload any relevant documentation.
- When you are finished, click “Lock,” and “Continue” to successfully lodge your application.
It is important to note that once the divorce application has been lodged, it cannot be amended. If you would like to create a divorce application and save it for review prior to lodgement, you can save the application and return to it, but only if you have not selected “Lock” (Step 8).
If the saved application is not progressed in the following 90 days it will be deleted, and a new application will need to be created. Ensure you are prepared to start and complete a divorce application lodgement within this 90-day period.
eFiling divorce application & Affidavit
When you have completed, locked, and logged your divorce application through the Commonwealth Courts Portal, you can complete the next step toward filing a divorce application: the Affidavit. An Affidavit is a written statement that is referred to in legal proceedings, usually declaring that an application or circumstances are factual.
Print your application and sign the Affidavit eFiling Application. This signed Affidavit can be uploaded to the Portal to support your application. You will be prompted to download a comprehensive Marriages, Families and Separation brochure outlining the legal proceedings. Ensure that both parties read this brochure to prepare for the next steps.
Payment will then be required in the form of a one-time lodgement fee. When this payment is made, you can select a court date that will take place in the court location of your choice. At this time, the divorce will be granted, and parental arrangements will be discussed and determined by those former partners with children.
Sole Application to File a Divorce
It is not uncommon that a party will apply for a divorce through a sole application. This will typically occur when one party has decided to end the marriage and the other party is not yet in agreement with the separation, or the separation is not amicable. This sole applicant will only need to sign with their own application, and when this is complete the application will be served to the former partner (referred to as ‘respondent’).
If the parties have children together (that are under the age of 18), then the sole applicant and the respondent will be required to attend a court hearing regarding parenting arrangements. It is expected that the parents will communicate a parenting arrangement plan prior to court, with the Court determining the outcome if there is not a consensus from both parties. If there are no children, then the respondent only needs to receive the application and they do not need to sign it to progress the application.
How Can a Family Lawyer Support You When Filing a Divorce Application?
Divorce proceedings, while black and white in a court of law, can be anything but for the individuals and families navigating this period. If there are children, property, and resistance from one party – then there are more complications still. A trusted, dependable, and professional family lawyer can provide significant support during this turbulent time, and their expertise is not only helpful in the courtroom.
You may also seek support and legal guidance before you choose to file a divorce application, as part of a fact-gathering stage, so that you can better understand and anticipate the journey ahead. Whether you are reaching the end of an amicable separation period or find yourself in a stressful conflict, your family lawyer will advocate for your rights and provide respectful representation throughout.
Family lawyers can also be integral in promoting mediation and will often facilitate these sessions through a third-party provider. If the divorce application is not straightforward and further supporting documents are required, then a family lawyer can provide these forms and lodge them on your behalf within the desired timeline. Shared property and children will often impact the speed of a divorce outcome, so preparing ahead of time with your legal representation will reduce the need for follow-up court appearances and communications.
Property assets and other financial declarations will not form part of a divorce application, but they can be discussed with your family lawyer ahead of your appearance so that an appropriate division can be determined.
H2: Find the Legal Support You Need for Your Divorce
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If you would like to learn more about your divorce options or require clarity on how to file a divorce application, you can find a law firm for a discrete and obligation-free discussion.