HOMESeparation & Divorce
Separation & Divorce
Separation
This section is about stages of separation, how separation can affect people, what you will need to consider and some immediate decisions you may need to make. It provides links to places you can seek assistance and legal advice about your situation.
Stages of separation
Separation is a major step for everyone. It's a time when you need help and information. Most people admit feeling the worst they have ever felt in their life. Grief, where you feel the loss of an important part of your life, may be the reason for this. If you separate, you may experience the following different stages of grief:
shock and denial that it is really happening
anger and blaming your former partner or another person
sadness and depression
moving forward – acceptance and adjustment to your new life.
Talking to friends and family can help you sort out your feelings. Trained help may assist you and your children cope better with the changes.
Moving at a different pace
Separation affects everyone differently. You and your former partner may move through the stages of separation at a different pace, feeling different things at different times. For example, one of you may be starting to accept the separation while the other is still feeling angry.
What you need to consider
If you separate, you and your former partner will need to make some immediate decisions about practical issues concerning your children and your assets. You may not be able to agree on all these things at the time of separation, but it can greatly help you and your family if you try to reach a temporary agreement. You can use the facilities of the Family Relationship Centres, if there is one in your area, or other community-based services to reach an agreement. It is a good idea to get legal advice.
Some of the things you need to consider are:
where your children live and who will take care of them
how you and your former partner will support yourselves and your children
what, how and when you will tell the children, other family members and friends
who will pay outstanding bills or debts
who will stay in the house
how will the rent or mortgage be paid
what will happen to any joint bank, building society or credit union accounts
what will happen to the house, car, furniture and other property.
Getting help
Talking to friends and family can help you sort out your feelings. There is also trained help available that can assist you and your children cope better with the changes. Some of the services available are:
Family Relationship Centres. To find a centre near you, or to find out about other services in your area, call 1800 050 321 or visit Family Relationships Online
Reconciliation counselling may help you understand more about your feelings and help you decide whether to stay together or not.
Separation counselling or mediation may help you to sort out any problems you have about settling your arrangements if you decide to separate.
Legal advice may help you understand the law relating to family disputes and help you understand your legal rights and responsibilities.
Legal information is widely available on the Internet and in public libraries.
services for Aboriginal and Torres Strait Islander communities has information on services for Indigenous communities and links to Aboriginal Legal Centres.
services for ethnic communities has information on translation and interpreter services for ethnic communities.
Services Australia — Child Support
Services Australia — Centrelink
De facto relationships
What is a de facto relationship?
A de facto relationship is defined in Section 4AA of the Family Law Act 1975 . The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.
Can I apply to the Family Court or Federal Circuit Court to have my de facto dispute determined if it's about my children?
Yes. The Family Court and the Federal Circuit Court deal with issues related to the children of de facto relationships in the same way as the children of married couples.
Can I apply to the Family Court or Federal Circuit Court to have my de facto financial dispute determined?
Yes. From 1 March 2009, parties to an eligible de facto relationship which has broken down can apply to the Family Court or the Federal Circuit Court to have financial matters determined in the same way as married couples.
You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply.
Before the Court can determine your financial dispute, you must satisfy the Court of all of the following:
1 you were in a genuine de facto relationship with your former partner which has broken down
2 you meet one of the following four gateway criteria
That the period for the de facto relationship is at least 2 years
That there is a child in the de facto relationship
That the relationship is or was registered under a prescribed law of a State or Territory
When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice
3 you have a geographical connection to a participating jurisdiction
4 your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state.
You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.
How do I make an application to the Family Court or Federal Circuit Court?
You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.
Your application is made using the same forms that are used by parties to a marriage and your case will be dealt with under the same procedures that apply to married couples making the same type of application.
More information
For information about applying to the Court for orders, see the fact sheet Applying to the Court for orders.
For help resolving your dispute out of court, go to www.familyrelationships.gov.au or call 1800 050 321.
Divorce
The Family Law Act 1975 established the principle of no-fault divorce in Australian Law. When granting a divorce the Court does not consider why the marriage ended and the only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together.
The Federal Circuit Court of Australia has the jurisdiction or power to deal with dissolution of marriage (i.e. divorce) under Part VI of the Family Law Act 1975 . The granting of a divorce does not determine issues of financial support, property distribution or arrangements for children. It simply recognises that the marriage has ended.
Can I apply for a divorce?
You can apply for a divorce in Australia if either you or your spouse:
regard Australia as your home and intend to live in Australia indefinitely, or
are an Australian citizen by birth, descent or by grant of Australian citizenship, or
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
Note: Same-sex couples whose marriages are recognised can access Australia's divorce system if they meet the requirements for divorce under the Family Law Act 1975 , regardless of when the marriage was solemnised. See Marriage equality in Australia on the Attorney-General's Department website and the fact sheet, Family Law implications of the recognition of same-sex marriages for further information.
Seeking legal advice
You can obtain legal advice to understand your rights and responsibilities before applying for a divorce or other applications in relation to 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 cannot provide you with legal advice.
How do I apply for Divorce?
To apply for a divorce you complete the online interactive Application for Divorce and pay the filing fee.
What a court considers in divorce applications
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.
The only grounds for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
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.
The Court does not set the fees payable. Court fees are set by Federal Government Regulations.
Can I oppose a divorce application?
If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:
there has not been 12 months separation as alleged in the application, or
the Court does not have jurisdiction.
If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date.
You need to set out the grounds on which you seek the dismissal in the Response to Divorce.
If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.
What if the application has errors of fact?
If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce.
You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You do not need to attend the hearing.
When should I file the Response to Divorce?
If you want to file a Response to Divorce, you need to file it:
if served in Australia – within 28 days of the application being served on you, or
if served outside of Australia – within 42 days of the application being served on you.
You can electronically file (eFile) a Response to Divorce on the Commonwealth Courts Portal or file it at a family law registry.
Do I have to attend the divorce hearing?
No children under 18
If there is no child* of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.
Joint application with children under 18
If you have made a joint application, you and your spouse are not required to attend the court hearing (even if there is a child of the marriage aged under 18).
Sole application with children under 18
If you have made a sole application and there is a child of the marriage aged under 18 years, you (the applicant) are required to attend the court hearing unless circumstances prevent you from attending (see below).
If there is no Response to Divorce, the other party is not required to attend, although they may do if they wish.
If a respondent has completed and filed a Response to Divorce, but does not oppose the application, he or she does not need to attend the hearing.
If a respondent has, in a Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.
* A child of the marriage includes:
any child of you and your spouse, including children born before the marriage or after separation
any child adopted by you and your spouse, or
any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.
What if I can't attend the hearing?
If it is difficult for you to attend in person, you may ask the Court to appear by telephone. You must complete a Telephone/Video link attendance request form setting out the reasons why you are requesting to attend by telephone/video link. See Rule 25.11 of the Federal Circuit Court Rules 2001 .
We are getting divorced – will decisions about future arrangements for our children, property and maintenance be made at the same time?
The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:
make an agreement with your spouse and file it with a court, or
seek orders from a court, where you and your spouse cannot reach an agreement.
For parenting cases, you also have the option to make a parenting plan. For more information about parenting plans, go to www.familyrelationships.gov.au or call 1800 050 321.
If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.
I have applied for a divorce, is it safe to set a wedding date for my new marriage?
You should not make firm plans to marry on a specific date until the divorce order is finalised. You may, however, complete and lodge a Notice of Intended Marriage with an authorised celebrant before the divorce order is finalised.
If you intend to remarry, you must lodge the Notice of Intended Marriage with an authorised marriage celebrant at least one month before the date the marriage is solemnised, and comply with other requirements of the Marriage Act 1961 . The authorised celebrant must sight a copy of the divorce order before the wedding can take place.
In most cases, the divorce order takes effect one month and one day after the divorce is granted. You should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.
What is meant by separation under the one roof?
It is possible for you and your spouse to be separated but to continue 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.
We want to divorce but have been married less than two years. We understand we have to do certain things, what are they?
If you have been married less than two years you will need to file a counselling certificate. 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 you will need to file an affidavit as outlined in the fact sheet.
The two years are calculated from the date of the 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.
I married overseas – can I get a divorce in Australia?
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 Australian citizen or resident, or
are an Australia citizen by birth or descent
are an Australia citizen by grant of an Australia citizenship
ordinarily live in Australia and have done so for 12 months immediately before filing 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.
I got divorced overseas – is it recognised in Australia?
You can apply for a divorce overseas. Australia will recognise a divorce if it was effected in accordance with the laws of that country – refer to s.104(7) of the Family Law Act 1975 .
Am I required to serve the Application for Divorce on the other party?
Service is a requirement to allow the other party to be notified of the pending application for divorce involving them. You can refer to Family Law Rules 2004 r7.09 for information on service of a person with a disability and r7.10 for information in relation to service of a person in prison.
If you have made a joint application, you do not need to serve your spouse with any documents.
If you filed a sole application you are required to serve the application. You will need to arrange for certain documents to be served on your spouse either by post or by hand．
What if I am unable to locate my spouse?
The divorce application asks for your spouse's address for service. If you are unable to locate your spouse, even after you have taken all reasonable steps to locate him/her, you can apply for an order to dispense with service or for substituted service.
How do I prove I am divorced?
The proof of divorce process allows you to request a search of the records of the Family Court of Australia and the Federal Circuit Court of Australia. Where a divorce can be proven, you will be provided with an official document that serves as proof that a divorce was granted and finalised.
Divorce orders after February 2010 are digital orders with an electronic seal and signature. This is the only form of order provided by the court.
If your spouse applied for the divorce and the divorce was granted after 13 February 2010, but you did not receive a divorce order after the divorce was finalised, go to the heading My divorce was granted after 13 February 2010 and follow the instructions to access your official divorce order.
The process of requesting proof of divorce records is different depending on where and when your divorce was granted.
Withdrawal of application for divorce
The form Notice of Discontinuance is used to:
discontinue your application, response or notice of appeal, or
withdraw part of your case, for example, if you do not want to continue to seek some of the orders that you have sought in an application, a response or notice of appeal.
If your matter is in the Family Court of Australia, please use - Notice of Discontinuance (FCoA)
Please note: Filing this notice does not prevent the other party from continuing to seek the orders they have sought, including orders for costs.
You need to file the completed and signed original Notice of Discontinuance form, plus a copy for each other party to the proceeding. The Court will keep the original on the court file and send the photocopies back to you. One for your records, and the others you have to serve upon the parties to the proceedings (including any independent children's lawyer, if any).
Please note: If the next court listing for your matter is not vacated even after you have lodged the Notice of discontinuance, it is in your best interest to attend that event so that no court orders are made in your absence.
Nullity
What is a declaration of nullity?
A declaration of nullity is a finding that there was no legal marriage between the parties, even though a marriage ceremony may have taken place. The Family Court of Australia may declare a marriage invalid on the following grounds:
1 one or both of the parties were already married at the time,
2 one or both of the parties were under-age and did not have the necessary approvals, or
3 one or both of the parties were forced into the marriage under duress.
The Court will NOT declare a marriage invalid on the following grounds:
1 Non-consummation of the marriage
2 Never having lived together
3 Family violence or
4 Other incompatibility situations.
See Marriage Act 1961 (Cth) or the Family Law Rules 2004 for more information on what grounds a party may apply for a decree of nullity.
Which courts can declare a marriage invalid?
Under the Family Law Act 1975 , the Family Court of Australia and the Family Court of Western Australia have the power to declare a marriage invalid.
How do I apply for nullity?
To apply for nullity, you must file an Initiating Application. You will also need to prepare an affidavit stating:
1 the facts relied on to have the marriage annulled, and
2 details of the type of marriage ceremony performed.
You will also need to pay the filing fee. Fees are set by regulation.
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.
How do I apply for a Divorce?
The Federal Circuit Court of Australia has the jurisdiction or power to deal with dissolution of marriage (i.e. divorce) under Part VI of the Family Law Act 1975.
You may prepare your own divorce application or ask a lawyer to do it for you.
Note: Divorce proceedings do not finalise any arrangements regarding parenting and property/finances.
Note: Same-sex couples whose marriages are recognised can access Australia's divorce system if they meet the requirements for divorce under the Family Law Act 1975, regardless of when the marriage was solemnised. See Marriage equality in Australia on the Attorney-General's Department website and the Fact Sheet, Family Law implications of the recognition of same-sex marriages for further information.
Applications for Divorce (Same-sex couples) can now be completed online.
You can apply for a divorce by yourself (sole application) or together with the other party to the marriage (joint application). The same online application is used for both sole and joint applications.
Before you start your application it is important to understand whether to file a sole or joint application, as there are different obligations in either case. Choose the headings below for specific information you need to know before starting an application.
At Part A Question 1 you must select whether you are filing the application on your own (sole) or together with the other party (joint).
If you make a sole application, you are known as the applicant and the other party is known as the respondent. Only you as the applicant are required to sign the Affidavit for eFiling Application (Divorce). The respondent does not need to sign the Affidavit for eFiling Application (Divorce) however you do need to serve the application on the respondent.
Court attendance is not required if there are no children of the marriage.
Court attendance is required if there are children under the age of 18 years.
At Part A Question 1 you must select whether you are filing the application on your own (sole) or together with the other party (joint).
For a joint application, both parties are known as joint applicants. If you file a joint application one party completes the application and provides a copy to the other party to review and sign. When you eFile you will be able to print the document at the end of Step 1 and provide a copy to the other party for review. Once you lock the joint application at step 4 you can then print the finalised document for signature. Both applicants must sign the Affidavit for eFiling Application (Divorce). You do not need to serve documents on the other party if you make a joint application.
Court attendance is not required if you file a joint application.
Court attendance is required if you select to attend at Q2(a).
You must be eligible to apply for a divorce in Australia (select yes or no to proceed to next step)
You (or the other party to the marriage) must answer YES to at least one of the following:
Were born in Australia or have become an Australian citizen by descent (born outside Australia and at least one parent was an Australian citizen and your birth is registered in Australia).
Are an Australian citizen by grant of Australian citizenship (a citizenship certificate will be required).
Are lawfully present in Australia and intend to continue living in Australia. You must have been living in Australia for at least the last 12 months - evidence must be provided e.g. your passport showing the date of arrival at least one year prior and a valid or current visa.
Has your marriage broken down and there is no reasonable likelihood that you will get back together?
YES: Please proceed to the next question.
NO: At least one spouse must regard the marriage as over on the date of separation and in some way communicated this to the other spouse.
Have you been separated for 12 months and 1 day or longer?
To get a divorce you must have been separated for 12 months and 1 day or longer. Sometimes separated couples are still living together in the same home – see information at the heading below Separated and living at the same address in the last 12 months.
YES:Please proceed to the next question.
NO: You cannot sign and file the application until you have been separated from your spouse for at least 12 months. For example, if you separated on 7 November 2015 you cannot apply for a divorce until 8 November 2016.
Do you have your marriage certificate?
If you were married overseas it is important to read More information as you may need to have your marriage certificate translated.
YES:Please proceed to the next question.
NO: If you do not have your marriage certificate, you must obtain a copy from Births, Deaths and Marriages in the state or territory in which you were married. If you were married overseas you should contact the relevant authority in that country to obtain a copy of your marriage certificate. If, after all reasonable attempts you cannot obtain a copy of your marriage certificate you will need to prepare and file an affidavit with your application setting out why you are unable to provide the certificate. You should seek legal advice about how to do this. The affidavit needs to explain the details of your marriage and the reasons why you cannot get a copy of your marriage certificate.
３Getting legal advice
If you need help to complete the application or are unsure about whether you are eligible to file for divorce, you should obtain legal advice. A lawyer can also explain how the law applies in your case. The court is unable to provide legal advice because to do so could seriously compromise the court's ability to impartially determine a case.
The Family Relationship Advice Line (FRAL) can help you with free legal advice and information about services available to assist anybody with family relationship issues - call 1800 050 321 (+61 7 3423 6878 if you are overseas). You should advise FRAL that you are seeking legal advice and they will take your details and a lawyer will call you back. FRAL will advise you of a timeframe on the call back, you should advise if it is urgent.
Alternatively, the Australian government funds a range of legal assistance services that may be able to assist you, including Legal Aid Commissions and individual Community Legal Centres, which offer free and low cost advice.
4. Things you may need to consider
Check each of the headings below in case they are relevant to you. Each heading has information you may need before you apply.
If you have been married less than two years you will need to file a counselling certificate.
To obtain a certificate you will need to attend counselling. To arrange counselling contact the Family Relationship Advice Line (FRAL) on 1800 050 321. If you are unable to attend counselling with your spouse you will need to file an affidavit as per the fact sheet.
Separated and living under the same roof in the last 12 months
If you have been separated and living in the same residence for any part of the twelve months prior to filing your application you will need to provide extra evidence to prove that there has been a change in the marriage by preparing and filing an affidavit.
If you are filing a joint application both parties should file an affidavit. In both types of applications (sole and joint) you should also ask a third person to file an affidavit to corroborate your evidence.
If there are children of the marriage who are under 18 years of age it is important to provide particulars of the arrangements in Part F of the application including housing, if not at school - care arrangements, schooling - grade and progress - care before and after school, health of the child/ren, contact with each parent and if no contact, why?, financial support provided for the child/ren if not, why not?
A child of the marriage includes:
１any child of you and your spouse, including children born before the marriage or after separation
２any child adopted by you and your spouse, or
３any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.
Can't locate your spouse
The divorce application asks for your spouse's address for service. If you are unable to locate your spouse, even after you have taken all reasonable steps to locate them you can put their address as 'unknown'. You will need to upload a further application seeking an order to dispense with service or for substituted service.
Change of name from married or maiden name
If the name you use now is different from your married name or maiden name you will need to file an affidavit explaining the difference in names.
５How much will it cost
A fee of $940 is payable or you may be eligible for a reduced fee of $310. To see if you are eligible go to Guidelines for fee reduction.
If you are eligible for a reduced fee you will need to provide evidence. For example if you hold a health care card, you will need to provide a photocopy of your card (both sides). If you are filing a sole application only the applicant needs to be eligible for the reduced fee. If you are filing a joint application both parties must be eligible for the reduced fee - if only one party is eligible the full fee applies.
If you are not eligible for the reduced fee, but payment of the full fee will cause you financial hardship you can apply for the reduced fee due to your financial hardship. You should complete the Application for reduction of payment of divorce or decree of nullity - financial hardship for consideration.
The filing fee is payable at the time of filing the application using a Mastercard or Visa credit/debit card via the Commonwealth Courts Portal.
NOTE: If you DO NOT have a credit/debit card you can buy a pre-paid debit card from various retail outlets for a nominal fee.
６Filing your application
Applications for divorce should be eFiled online using the Commonwealth Courts Portal.
You will need access to a scanner, printer and a visa or mastercard.
NOTE: If you DO NOT have a credit/debit card you can buy a pre-paid debit card from various retail outlets for a nominal fee.
If you are unable to eFile contact the National Enquiry Centre by email so we can provide you with the appropriate forms. You can apply electronically if you are eligible for a reduced fee or applying for a reduced fee due to financial hardship.
７What happens next?
Every application for divorce is different, depending on your circumstances you may be asked to file further documents. If you filed a sole application, you will be required to serve your divorce.
８Do you need to go to court?
Court attendance is only required if you have filed a sole application and there is a child of the marriage aged under 18 years at the time of filing or you have indicated that you wish to attend in question 2(a) of the application.
You should attend if you are applying for an order for substituted service or a dispensation of service in the circumstances when you cannot find the respondent to serve the court documents．
It is also advisable to attend if you are required to provide additional affidavit material to explain circumstances such as separation under the same roof/ married less than two years and other situations which may impact on the outcome of your matter. You should bring all documents with you to court including a copy of your application and service documents.
If it is difficult for you to attend in person you can ask the court to appear by telephone, you need to do this as soon as possible after you have filed the application. You should request this using the Telephone/Video link attendance request form which can be eFiled. See r.25.11 FCCR 2001 for more information. If your request to attend by telephone is not confirmed you should follow up by email.
If you are required to attend the hearing see tips for your court hearing and the court tour video which provides a guide to the courtroom and court etiquette.
９Finalising your divorce
Once the divorce is granted it will be finalised one month and one day later unless a special order is made by the court to shorten that time.
Your divorce order will be available for you to download from the Commonwealth Courts Portal the next working day after the order has become final.
１Go to www.comcourts.gov.au to log in.
２Go to the Available Files tab then select the All tab and choose your file.
３Under the Additional options for this file heading select List of orders.
４Select View Orders in the right hand column in the row next to the Hearing divorce event type to open the digital order.
５Print. It is recommended that you print the divorce order double sided and in colour.
The divorce order has an electronic seal and signature and is an original order. This divorce order is the
only official and original record the court issues and is evidence that a divorce order has been made.
