Family Law
July 15, 2021

So You’re Getting a Divorce? Here’s our Simple Step-by-Step Guide

Divorce is the formal legal ending of a marriage.

When you apply for divorce, you complete an application to the Court seeking to formally end your marriage on the record. Once the application goes through, you get a divorce order. Just like you received a marriage certificate when you got married, you receive a divorce certificate once your divorce order becomes final.

Remember, though, that divorce is completely different from sorting out things like property settlement or parenting arrangements, which are dealt with separately under family law. It is very common for people to get these confused and we invite you to read some of our other articles on these matters. This article touches on the divorce process only.

There are 5 key stages to the divorce process and these are:

1. Separation

Before you can file for divorce, you need to have been separated from your ex for at least 12 months. The Court considers 12 months long enough to prove that you and your ex are over.

Separation usually means that you and your ex have lived apart from each other, but it is possible to be ‘separated under one roof’ if certain criteria are met.

We should add that separation can be mutually decided, or unilaterally initiated by one party.

2. Filing the Divorce Application

You can file your Divorce Application from one year and one day post separation. The application is filed online via the Commonwealth Courts Portal (“Portal”). The application asks for all the necessary details about you, your marriage, any kids you have, and requires you to upload supporting documents through the Portal. Supporting documents includes your marriage certificate, proof of jurisdiction e.g. Australian citizenship certificate, Australian passport or visa, and counselling certificate if the marriage is less than 2 years.

If you and your ex agree to apply for the divorce together, you can file a ‘joint application’ and share the costs of the application. The filing fee is about $1,000 and it increases from 1 July each year. If you make a ‘joint application’ , you won’t need to attend the Divorce Hearing, even if you have children.

If your ex doesn’t agree with the divorce or refuses to co-operate with you in the divorce application process, they can’t stop you from filing for divorce; you will just need to file a ‘sole application’, pay the application fee yourself (unless you qualify for an exemption), and serve your ex with the divorce papers.

3. Serving the Divorce Application

If you’ve lodged a ‘sole application’ for divorce, you’ll have to ‘serve’ or give a copy of your filed application to your ex. You can do this by post or personal delivery.

If you’re serving the application on your ex by post, they must sign an Acknowledgment of Service form to confirm they’ve received the application.

If you’re wanting to serve the application on your ex personally and you’re the one applying for the divorce, you won’t be allowed to conduct personal service yourself. Instead, you’ll have to engage a process server or someone else you know to do it for you. Once the application has been served on your ex, the person who served the documents must prepare an Affidavit of Service by Hand and return an Acknowledgment of Service form.

You’ll need to file on the Portal any Affidavits and Acknowledgment of Service forms.

Remember, divorce papers must be served at least 28 days before the Divorce Hearing (if your ex lives in Australia) or 42 days before the Divorce Hearing (if your ex lives overseas).

4. The Divorce Hearing

Divorce Hearings are electronically conducted by a Registrar (not Judge) who goes through your documents and, if satisfied that everything is correct, will grant the divorce order. The details of your Divorce Hearing will be available on the Portal.

If you’ve filed a ‘joint application’, you won’t need to attend the Divorce Hearing, even if you have children.

If you’ve filed a ‘sole application’, you don’t have children, and you’ve completed documents confirming service of your application, you won’t need to attend the Divorce Hearing.

If you’ve filed a ‘sole application’ and have children, you’ll need to attend the Divorce Hearing.

5. Divorce Finalised

One month and one day after your Divorce Hearing, your divorce order will become final. The Court will then upload a certificate to the Portal for you to download.

Thereafter, you will be allowed to re-marry.

Please note that once your divorce order becomes final, you only have 12 months to finalise your property settlement with your ex (what we mentioned at the beginning of this article), otherwise you must commence proceedings in Court for property settlement or spouse maintenance in order to stop time. If you don’t, you’ll be prevented from later commencing proceedings without first obtaining ‘leave’ or special permission from the Court to proceed out of time, a process which is time consuming, expensive and there is no guarantee that the leave would be readily granted.

Please note that every divorce matter is different, no Divorce Application is ever the same, and in some instances, the divorce process can be extremely complicated particularly around service issues. If you have any questions in relation to obtaining a divorce, we invite you to reach out to one of our family lawyers atGreenleaf Legal on (02) 8605 3437 for an obligation free and confidential discussion today.

The Author

Amanda Elias