In Australia, you can obtain a divorce through the Courts by filing an Application for Divorce. The Application can be made by either you alone or jointly by you and your spouse together.
In order to apply for a divorce, either you or your spouse must be:
Australian Courts generally recognizes marriages from almost all other countries. Accordingly, you are generally able to apply for a divorce in Australia even if you were married overseas, as long as the above requirements are met.
If at the time of the application for divorce it has been less than 2 years since you were married, you and your spouse are required to attend counselling to discuss the possibility of reconciliation. If counselling is not possible, you will need to write to the Court requesting permission to file the application without a counselling certificate.
Generally, you are not required to attend the Court Hearing for your Application for Divorce if:
Obtaining a Divorce Order from the Court usually takes about 2 to 3 months and if you are planning to re-marry, you should consider filing the application as soon as possible after the 12 months separation period, in order to avoid any delays.
Separation under one roof
It is possible to obtain a divorce even if you and your spouse have been living in the same house, but not as husband and wife, during part or all of the required 12 months separation period. This situation is generally known as “separation under one roof”.
In this situation, you will need to support your divorce application with additional evidence to prove that you were indeed separated at the time you were both still living in the same place of residence or “separation under one roof”. Generally, the additional evidence is provided to the Court by way of an Affidavit which explains:
Further, the Court will ordinarily require corroboration of your claim by a third person. This third party can be one of your friends or family members who knew about your separation. This third party must file a separate Affidavit in Court to show that he or she knew about your separation and the circumstances surrounding your living arrangements.
The Court will then list your matter for a Court Hearing after receiving all of your filed documents. You and your witness should attend the Court Hearing and may be required to give further evidence at the Court Hearing in order to satisfy the presiding Judicial Officer of your claims.
Service of Court Documents
If you apply for a divorce on your own, you must serve the application on your spouse. Service of Court documents means delivering the document to another party to the proceedings whilst in compliance of the rules depending on the type of the document that needs to be served.
You cannot personally serve an application for divorce to your partner. An application for divorce may be served by post or personally delivered by another person. However, you should only serve the application for divorce by post if you are confident that your spouse will receive it and will likely sign an acknowledgment form. There are time limits for serving the divorce application on your spouse and failure to do so will likely result in delays.
Inevitably, there will be situations where you are unable to serve the divorce application on your spouse. If this happens, you will need to make an application to the Court for an order to dispense with the requirements of service. An application for dispensation of service can be done via an Application in a Case with a supporting Affidavit filed in Court.
When deciding an application for dispensation of service, the Court has to consider the following:
The Court expects you to make all reasonable efforts to find your spouse prior to you seeking orders to dispense with service. Generally, this means you will need to demonstrate that you have:
If you are going through separation or a divorce – know that you’re not alone and that help is just a phone call away. Contact us to arrange for a confidential consultation with one of our friendly Family Lawyers as soon as possible.
