Completing a divorce properly the first time helps parties move on quickly. However, there is more involved than you may realise. From eligibility and pre‑action procedures to filing and service requirements, we are going to clarify the whole process.
What is divorce?
We all basically know what a divorce means: the ending of a legal marriage. It is administered by the Federal Circuit and Family Court of Australia under the Family Law Act.
There are some nuances to divorce that are sometimes overlooked.
The only grounds for divorce are that the marriage has broken down irretrievably. This is called a no-fault system.
Only one party needs to believe that the marriage is over.
How to Apply for Divorce in Australia (Step by Step)
Step 1: Determine Your Eligibility
Australian law cannot preside over every divorce. The Federal Circuit and Family Court of Australia must have jurisdiction. You or your spouse must meet one of the following criteria:
Regard Australia as your home and intend to live here indefinitely.
Be an Australian citizen by birth, descent or by grant of citizenship.
Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You may need to provide evidence, such as:
A citizenship certificate.
A valid visa.
A passport stamped with the date of your arrival.
Jurisdiction issues
Since eligibility criteria are fairly broad, it’s possible that a divorce may be undertaken in more than one country. What happens if spouses who were married overseas both apply for a divorce in separate jurisdictions?
Australia resolves jurisdiction issues with the “clearly inappropriate forum” test (or forum non conveniens, because lawyers love their Latin). This test determines whether processing the divorce in Australia would be unduly vexatious or burdensome for one or both parties. Some of the factors that may influence the Court’s decision include:
Whether the parties have a particularly strong connection to one jurisdiction.
Whether one jurisdiction provides easier and cheaper access to expert witnesses.
If orders made in the other jurisdiction would be recognised in Australia.
If children are involved, where they’re located and how far they’d need to travel to participate in the process.
The capacity of the other jurisdiction to provide a complete resolution to the matter.
No one factor is determinative. The Court may weigh factors differently depending on the specifics of the case.
Marriages of less than two years
If your marriage lasted less than two years, you must attend counselling before filing your application. Once you have completed the sessions, one of two things could happen:
You rekindle your relationship and withdraw the divorce application; or
Your differences remain irreconcilable. You will receive a counselling certificate showing that you tried. Include the certificate in your application.
There may be situations where you cannot attend counselling. You must submit an affidavit explaining why your attendance was not possible. Some reasons why counselling is not appropriate include:
You can’t locate your spouse.
There was a history of domestic violence in your marriage.
Your spouse refuses to attend despite your best efforts. You will need to detail your attempts to get them to attend.
Separation
Before applying for a divorce, you must have been separated for at least a year. There is no formal way to establish your separation date. The more evidence you can produce for your separation, the easier it will be to establish the starting date. Evidence may include:
Separate residences. Evidence that you live in a different residence, such as a new lease agreement or utility bills in one name.
Financial separation. Demonstrate that you have closed joint accounts and changed beneficiaries in insurance policies and wills.
Informing government agencies. Show that you have informed agencies like Centrelink of your separation.
The law wants to give divorcing couples every opportunity to explore possibilities for reconciliation. For that reason, separated couples are permitted to reconcile for a period. If a couple gets back together but separates again after no more than three months, they may resume their separation without resetting the 12-month requirement.
Separation under one roof
Life isn’t getting any cheaper. Having different residences is a luxury many couples can’t afford. The Court understands that. You need to show that you’re living separate lives. This doesn’t necessarily mean you’re physically separated. You could show this by:
Maintaining separate bedrooms.
Ceasing sexual activity.
Eating meals at separate times.
Not performing domestic duties for each other.
Both spouses will need to complete an affidavit explaining how their relationship has changed since separating.
Step 2: Prepare Marriage Certificate and Other Documentation
You need to be legally married before you can get divorced (obviously). You prove that with your marriage certificate. If you need a replacement, you can request one from the Registry of Births, Deaths and Marriages for $54.40. If you were married overseas, you’ll have to contact the relevant authority in that country. You can only submit an official certificate with your application, not a ceremonial or commemorative certificate.
If you were married overseas, your marriage certificate may be in a language other than English. You will need to get an authorised translation first. The translation should be completed by a person accredited by the National Accreditation Authority for Translators and Interpreters.
The translator will complete an Affidavit Translation of Marriage Certificate. They will then provide a translation and a document stating their qualifications.
Step 3: Apply for a divorce online
You can pursue a divorce through a sole or joint application. Complete the application online. The basic process is as follows:
Register an account on the Commonwealth Courts portal.
Select the option to file an application for divorce online.
Fill out the application form.
Select print preview to review the completed application.
Upload any necessary additional documents.
Choose “Lock and Continue” once you are sure the application has been completed accurately.
Print the application.
Joint applicants must both sign the Affidavit for eFiling (Divorce) Application.
Have the signatures witnessed by a Justice of the Peace.
Joint applicants may sign separate Affidavits if needed.
Upload the signed and witnessed Affidavit.
Download the brochure “Marriage, Families and Separation”.
Pay the filing fee and submit the application.
Select a court hearing date.
The fee for a divorce application is $1,125 as of 1 July 2025. You may be eligible for a reduced fee of $375.
If you want to know more about this, see our complete guide to divorce applications.
Sole application
A sole application has additional requirements. The primary difference is the need to serve the divorce documents.
Step 4: Serving Divorce Documents
There are several documents you must serve on the other party:
A sealed copy of the divorce application with a Notice of Application for Divorce attached.
A sealed copy of the Affidavit for eFiling.
A copy of the “Marriage, Families and Separation” brochure.
An Acknowledgment of Service (Divorce).
There are different ways to serve divorce paperwork.
Service by hand
The most common method is to have the application served on the other party. The applicant cannot serve their spouse personally. They must use a third party who is over 18. This may be a friend or family member, or a professional process server.
The recipient of the documents must sign the Acknowledgment of Service (Divorce). The server completes an Affidavit of Service by Hand (Divorce).If the server does not know the recipient, the applicant must file an Affidavit Proving Signature (Divorce). This affirms that they recognise their spouse’s signature. The applicant must then sign the affidavit in front of an authorised witness, such as a Justice of the Peace.
Service by post
Only post the papers to your spouse’s address if you are confident that they will sign and return them. Along with the documents to be served, include:
A stamped and addressed envelope so the papers can be returned.
A letter instructing them to sign the Acknowledgment of Service (Divorce) and keep the copy of the divorce application.
The Affidavit of Service by Post (Divorce) will ask you to indicate that you recognise your spouse’s signature. You must then sign the affidavit in the presence of an authorised witness.
Serving your spouse's lawyer
You may serve your spouse’s lawyer if they accept service. Once they have completed the Acknowledgment of Service correctly, no other documentation is necessary.
Step 5: Attend the Divorce Hearing (If Required)
Every divorce is allocated a court date. Whether the parties have to attend the court proceedings depends on the circumstances. Situations where attendance will be required include:
You’re a sole applicant and have children under 18 who were part of your family prior to separation.
You applied for substituted service or dispensation of service.
You indicated your intention to attend in your application.
The other party filed a response to the divorce application.
There are other circumstances where attending may be advisable, such as:
You were separated under one roof and need to provide further explanation.
Your situation has changed since making the application.
Joint applicants aren’t required to attend if none of the above apply.
Step 6: Divorce Finalisation
Once all requirements have been met, your divorce order will come into effect one month and one day after the Court grants your application.
Response to divorce
A spouse may file a response to divorce if they disagree with any aspect of the application. A response may be filed because the respondent:
Wants the divorce to proceed, but believes the current application is invalid for reasons such as:
There haven’t been proper arrangements made for a child of the marriage under 18.
Service wasn’t completed accurately.
Australia isn’t the correct jurisdiction for the divorce.
Doesn’t agree with the separation date and doesn’t want the divorce to proceed.
You may need to attach an affidavit to provide evidence to support your response. This could include:
Evidence that neither spouse meets the residency requirements.
Communication indicating that the applicant is still invested in the marriage.
Evidence that the spouses haven’t lived sufficiently separate lives.
The response should be filed within 28 days of being served the divorce documents. If you are outside Australia, the response may be filed within 42 days. Serve the applicant with the response as soon as possible.
You must attend the divorce hearing to contest the application. The judge will consider:
The couple’s eligibility.
Your evidence for the response.
The arrangements for children under 18.
The potential outcomes of the response are:
The Court isn’t convinced by your response and allows the divorce.
The divorce is delayed while the applicant corrects any mistakes.
In rare cases, the Court may reject the divorce. This usually happens when the applicant was ineligible or the separation period wasn’t completed.
Other Considerations
Divorce applications don’t account for property and parenting arrangements.
Property settlement
There are various ways to settle property matters. Your options include:
Informal agreement.
Binding financial agreement (BFA).
Property order.
A property order or BFA is recommended to ensure your agreement is legally enforceable.
Parenting arrangements
Like property matters, parenting arrangements can be made formally or informally. Here are your options:
Parenting consent order.
Parenting order.
Court orders are the only way to make parenting arrangements legally binding. It is best to apply for a consent order to arrange co‑parenting on agreed terms.
Fee exemptions
Couples can face several court costs when completing their own divorce application. Divorce applications and court orders attract a filing fee when you file electronically. While filing fees for court orders may be waived completely, the divorce fee may only be reduced. Currently, the $1,125 divorce fee may be reduced to $375.
Fee exemptions may be granted to the following applicants:
The primary holder of certain government concession cards.
A legal aid recipient.
Parties who are under 18.
Parties receiving youth allowance, AUSTUDY, or ABSTUDY payments.
Inmates in a prison or other public institution.
Financial hardship
Parties who don’t satisfy any of the above criteria may still receive an exemption if they can prove financial hardship. To do so, they must pass three tests.
Income test
This test measures an applicant’s gross income against allowable thresholds. The thresholds are based on the number of dependants the applicant is responsible for, as listed on the Family Court’s website.
Assets test
The applicant’s total cash, convertible shares, and bonds cannot exceed five times the cost of the fee being waived.
Daily living expenses and liabilities test
The Court will assess how much surplus income you have after accounting for all reasonable daily expenses and liabilities. This might include:
Food.
Rent or mortgage payments.
Utility bills.
Credit card debts.
Motor vehicle expenses.
The maximum allowable surplus income is set out on the Family Court website.
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Conclusion
Many parties feel powerless during divorce. Knowledge gives clients the ability to control their situation. Our guide can help you understand your rights and obligations. Good preparation and a clear view of what comes next will enable you to start a new chapter confidently.
If you want to apply for a divorce, contact our family lawyers for legal advice and support.
Don’t let legal issues stress you out. Contact us today for a free consultation.
