There are a few things you need to consider before applying for a divorce:
Are you filing a sole or a joint application?
You can apply for a divorce by yourself (sole application) or together with the other party to the marriage (joint application). If you make a sole application, you are known as the applicant. The other party is known as the respondent. For a joint application, both parties are known as joint applicants.
If you file a sole application, you must serve the application on the other party. For more information and a step-by-step guide see How do I serve a divorce?.
Have you been married less than two years?
If you have been married less than two years, you will need to file a counselling certificate.
The two year period is calculated from the date of 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.
To obtain a certificate, you will need to attend counselling. To arrange counselling, contact the Family Relationships Advice Line (FRAL) on 1800 050 321.
If you are unable to attend counselling with your spouse, or there are special circumstances as to why you have not attended counselling, you will need to file an Affidavit – Family law and child support as outlined in the fact sheet Have you been married less than two years.
Did you get 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
- are an Australia citizen by birth or descent
- are an Australia citizen by grant of an Australia citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
If you are an Australian citizen or permanent resident, you are required to file a copy of your Australian passport, Australian citizenship certificate or other proof of your permanent residency.
If you are not an Australian citizen or permanent resident but have been living in Australia for at least 12 months before applying to the Court for a divorce, you will need to provide evidence that you have been resident in Australia for the past 12 months. You can provide this evidence by uploading a copy of your Visa Entitlement Verification Online check.
Do you have a copy of your marriage certificate?
When you file your Application 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. See the affidavit translation of marriage certificate form.
If your marriage was conducted overseas and you do not have a copy of your marriage certificate, you should try to locate or obtain a copy from the relevant authority where the marriage took place. If you are unable to obtain a copy of your marriage certificate, you must file an Affidavit – Family law and child support with the Court explaining:
- why you are unable to provide a copy of the marriage certificate,
- details about the marriage ceremony, including time, place and form;
- where appropriate, the requirements of a valid marriage in the place where the marriage ceremony took place; and
- that the parties recognised one another, and were recognised by others, as spouses following the marriage ceremony.
Note: The Court will only consider an Application for Divorce without a marriage certificate in very exceptional circumstances.
If your marriage was conducted in Australia, you must apply to the relevant State or Territory Registry of Births, Deaths and Marriages to obtain a copy of the marriage certificate and file it with the Court.
Are you separated but still living at the same residence?
It is possible for you and your spouse to be separated but remain living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time, even though you were living in the same home.
More information can be found in the publication Separated but living under the one roof.
What will a divorce cost?
There is a filing fee for divorce applications. Current fees are available on the fees page.
In some cases, for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee. To be eligible for a reduced fee for a joint application, both you and your spouse must qualify for the same reduction. If only one spouse qualifies for the reduction, then the full fee applies.
More information about fee reductions can be found on the guidelines for exemption of court fees page.
The Court does not set the fees payable. Court fees are set by Federal Government Regulations.
Seeking legal advice
You can obtain legal advice to understand your rights and responsibilities before applying for a divorce. A lawyer can help explain how the law applies to your case.
The Family Relationships Advice Line (FRAL) can help you with free legal advice and information about services available to assist anyone with family relationships issues, including information relating to family law proceedings. Call 1800 050 321 or if you are overseas +61 7 3423 6878.
Court staff can assist with court processes but cannot provide you with legal advice.
How to apply
To apply for a divorce, you must complete the online Application for Divorce and pay the filing fee using the Commonwealth Courts Portal.
For a step-by-step guide and to start your application, see How do I apply for divorce?.
You may also be required to file additional documents with your application. If this is the case, see How do I eFile further documents to support my application for divorce?.
If you are making a sole application, you must serve the application on the respondent. See How do I serve a divorce? for more information including what you must do if you are you having trouble serving your divorce application.
Practice directions
Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.
Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.
In general, practice directions are issued to:
- complement particular legislative provisions or rules of court
- set out more detailed procedures for particular types of proceedings, and
- notify parties and their lawyers of matters which require their attention.
Below are links to the practice directions that apply to this area of law:
***Disclaimer – The above information was taken from the Federal Circuit & Family Court of Australia website as accurate in July 2024. If any changes are made by the court from that date they may not be reflected in this post
