How to get a divorce in Australia
Service of an Application for Divorce
If you are applying for a divorce as a sole applicant, then you are required to serve the following documents on the respondent by post:
- a sealed copy of the Application for Divorce with the Notice of Application for Divorce attached to the front;
- a sealed copy of the Affidavit of eFiling;
- a copy of the Marriage, Families and Separation brochure;
- an Acknowledgment of Service (Divorce)
- any other documents that you filed with the application;
- a letter requesting they sign the Acknowledgement of Service; and
- a stamped self-addressed envelope for them to return the form.
Alternatively, you can arrange for a third party to hand the documents to the respondent or to their lawyer (if the lawyer agrees, in writing, to accept service on their behalf).
Service must be completed at least 28 days before the hearing (or 42 if the respondent is overseas). Please record the date you carried out the service was completed.
Once service has been completed, you must e-file the documents in the Commonwealth Courts Portal.
Substituted Service and Dispensation of Service for a Divorce Application
If you are having trouble serving your spouse, you can apply for either substituted service to be carried out or have service dispensed with.
Substituted service
Substituted service allows you to serve the documents on a third person who the court is satisfied will bring those documents to the attention of your spouse.
Dispensation of service
If the court is satisfied that you have made all reasonable attempts to make service, you will either not have to do anything further to serve the documents or receive instructions from the court as to how to proceed.
To apply for either substituted service or dispensation, you will need to complete an application in case form on the Commonwealth Courts Portal and attach an affidavit.
In your Affidavit, you must explain all steps you have carried out to locate your spouse, such as:
- what attempts, efforts and enquiries you made to find them;
- when and how you last saw, spoke to or communicated in any way with them;
- their last known address;
- their nearest relatives and friends and what communication you had with them.
Please note that you should attend court to hear the outcome of this application (it is usually held on the same day and time as the divorce hearing). You may be required to give further information.
Objection to a Divorce Application
Suppose you are the respondent and have been served with an application for divorce by your spouse and disagree. In that case, you must file a response within 28 days of being served the application (if within Australia) or 42 days if overseas.
In your response, you must outline why you oppose the divorce. As it is a no-fault system in Australia, the only ground for divorce is the irretrievable breakdown of marriage. Therefore, the only way you could argue that the divorce application should not be granted is if you could successfully prove there is a chance that you will both want to get back together or that you have not been separated for 12 months.
You can file the response via the Commonwealth Courts Portal or at the family law registry and then serve this on your spouse.
You must then attend the hearing to find out if the court grants the application for divorce.
Attendance at Court
You only need to attend the hearing of the application for divorce in some circumstances.
If you made the application for divorce yourself, you must attend the hearing if there is a child or children of the marriage aged 18 years or younger.
The circumstances where you are not bound to attend the hearing but should are:
- When you have made an application for substituted service or dispensation because you may be asked by the court to give further information about the attempts you made to serve the application for divorce on the respondent; and
- You are the respondent, and you are objecting to the application being granted.
You do not have to attend the hearing as a sole applicant if:
- your spouse filed no response to the application for divorce;
- there are no children of the marriage under 18 years of age; and
- the respondent has made no request not to hear the application in the absence of the parties.
If you made the application for divorce jointly, then you do not have to attend the hearing, even if there is a child or children of the marriage under 18 years of age.
If you cannot attend, you must fill out a form requesting to participate via telephone/video link.
When the Divorce Order Takes Effect
If the application for divorce has been granted, it will take effect one calendar month after the order is made (which is the hearing date).
The court will make the order only if it has been satisfied that proper arrangements have been made for the care, welfare and development of children under 18 years.
Where the court is not satisfied with proper arrangements, it will adjourn the proceedings to seek a report from a consultant to assess the proposed arrangements.
If one of the parties to the application for divorce dies before the order takes effect, then the other party must inform the court or a registrar by filing with the Federal Circuit Court a death certificate with an attached affidavit setting out the date and place of death.
Divorce Order
When the application for divorce is heard and then granted, the court will draft an order that declares that the divorce has taken effect. The divorce order records all the matters that were considered in making the decision to grant the application for divorce.
The divorce order is issued one month after the hearing, specifying the date that the order commences.
The divorce order will include a time limit for making claims regarding the division of property or maintenance and will specify that the divorce order may vary or revoke a will in place. It will also name any children less than 18 years of age.
The granting of a divorce does not include decisions on the division of property and other future arrangements simultaneously; these must be pursued separately. For more information, visit the Parenting and Property & Finance pages on the Family Court website.
After the matter copy of the divorce, an order will be sent to both the applicant and the respondent.
Freedom to Remarry After a Divorce
The former spouses will be free to remarry after the date specified on the divorce order.
It would be best if you did not make plans to remarry until the application for divorce has been granted and finalised. This is because it will not always be the case that the application for divorce is granted on the date of the hearing. For example, you may be asked by the court to provide further information or take additional steps before it can make the decision whether to grant the application or not.
You are, however, able to complete and lodge a Notice of Intended Marriage form with a celebrant. This must be done at least one month before the marriage ceremony and the celebrant must ensure they have viewed the final divorce order before performing the marriage.
Rescission Of Divorce Order – What Does This Mean?
When a divorce order is granted, it is taken to have legal effect from the date specified on the order.
If, between the date of the hearing and the date on the order, you and your spouse resolve your issues and get back together, you can apply to the court to have the divorce order rescinded, which means that the order will be cancelled. The divorce will no longer have an effect.
To do this, you and your spouse will jointly need to file with the court a form called an Application in a Case.
A divorce order can also be cancelled where the court is satisfied that there has been a miscarriage of justice in some way, for example, by fraud, perjury, suppression of evidence or any other circumstance by one or both parties.
Property and Maintenance Orders After Divorce
A granting of an application for divorce does not mean that property and maintenance issues have been decided.
The divorce order will specify that in order to bring proceedings for the division of property and any maintenance, you must do this within 12 months after the date the order for divorce is made final.
If you wish to commence proceedings for maintenance and the division of property after 12 months, you will need to file a separate application to obtain permission from the court to do so.
Please note that if the divorce took place outside of Australia, then the 12-month period does not apply, as was the case in Anderson & McIntosh [2013] FamCAFC 200.
You and your former spouse can sort out how your property will be divided by either:
- agreeing without any court involvement and then formalising this with the courts (by e-filing Consent Orders); or
- Applying to the court for orders, the court will decide how the property and finances will be arranged, including whether and how much maintenance will be paid.
If you are not able to reach a resolution on your own and decide to apply to have the court decide, then the following factors will be relevant:
- your assets and debts, such as houses, cars and mortgages;
- the financial contributions of the parties, both direct and indirect, such as wages and inheritances;
- the non-financial contributions, such as child rearing and minding; and
- future requirements and earning capacities, such as age, financial resources and care of children.
If you made the application for divorce jointly, you do not have to attend the hearing, even if there is a child or children of the marriage under 18 years of age.
If you cannot attend, you must fill out a form requesting to participate via telephone/video link.
Effect of Divorce on Wills
By default, when a divorce is granted, it means that any gifts that were to be given to the (now former) spouse are revoked unless there is something contrary to this in the will itself, such as if the will stated that it was made “in contemplation of marriage”.
If the (former) spouse was the executor of the will, then they will be omitted from the will.
The same rule applies across Australia except in Western Australia, where the rule only applies if the divorce order was made after 9 February 2008.
Consider updating your will after the final divorce order. If you fail to update your will following divorce, your former spouse may be awarded part of your estate.
