Procedure to Obtain a Divorce

Last updated 27 April 2022

This information is intended to provide a general guide to the process of making an application for dissolution of marriage. Step-by-step information for making an application (including copies of necessary forms) is available from the Federal Circuit and Family Court of Australia (FCFCOA) registry or website.

Initial documents

In order to commence proceedings for a divorce, it is necessary to prepare an application for divorce. The application can be completed solely or jointly by the parties. This is done online through the Commonwealth Courts Portal or through a solicitor. Applications for same-sex couples cannot be filed online, and such persons will have to contact the Family Law National Enquiry Line (1300 352 000) or email enquiries@fcfcoa.gov.au for directions on how to file. If the form is being completed manually, it must be prepared at least in triplicate (the original for the court, and two copies for yourself and the other party). The applicant(s) will also need to provide:

a copy of the marriage certificate. If the marriage certificate is in a foreign language, a written translation from a translator is required
proof of jurisdiction (e.g. Australian citizenship, passport or visa)
a counselling certificate if marriage is less than two years
an affidavit of e-filing (divorce) to be witnessed by a lawyer or justice of the peace.

Filing of documents

All relevant documents must be filed in the FCFCOA. The filing fees may increase each year according to sch 1 of the Family Law (Fees) Regulations 2012 (Cth) and are also listed on the FCFCOA website. A reduced fee may apply if the court is satisfied that payment of the fee would impose financial hardship on the applicant (e.g. if the applicant receives a pension or is eligible for a Health Care Card) (visit the courts website to check your eligibility). The Application for Reduction of Payment of Divorce or Decree of Nullity – General (or financial hardship depending on your circumstances) forms to make an application for a reduced filing fee are available from the court registry or from the FCFCOA website.

At the time of filing, the court sets a hearing date for the application to go before a deputy registrar of the court. The period between the time of filing the application and the hearing date is usually eight weeks if the respondent lives in Australia. The court has power to increase or reduce time limits.

The applicant should have three copies of their application for divorce and supporting documents (including the original) with them if filing in person at the court registry. The court keeps the original application and the original marriage certificate and gives the applicant two stamped copies of the divorce application. The applicant should ensure that they obtain from the court two copies of the court brochure entitled Marriage, families and separation (to serve with the documents).

If filing online, the applicant should print two copies of the sealed application for divorce (a copy for themselves and the other to be served on the other party). The applicant should also download and print the court brochure to serve with the documents.

Service of documents

The applicant is required to serve (or deliver) a sealed copy of their application and the brochure on the other party. The copy of the application must be stamped with the seal of the court by the court registry or by electronic seal online. It is not necessary to serve an application if the application was made jointly by both parties to the marriage.

Service is the process of providing a copy of the application to the other party. Service occurs when the application and the brochure are delivered to the respondent by hand or by mail. There are special rules about how an application must be served.

Spouses must not personally serve documents on each other. If service is to be effected ‘by hand’, then the applicant may use a third party (e.g. a friend, relative or a paid process server) to serve the documents on the other party. This person must be over 18 years of age. It is recommended that the children of the marriage not be involved in serving the documents on a former spouse.

If served by hand, the applicant will need to also file with the court an Affidavit of Service by Hand, Acknowledgement of Service and Affidavit Proving Signature.

Service can also take place by post. This requires that a copy of the court-sealed application, the brochure, an Affidavit of Service by Post and an Acknowledgement of Service (Divorce) form be sent by prepaid post to the respondent’s last known address by return mail. If they fail to complete and return the Acknowledgement of Service (Divorce) form, the applicant will need to complete the service by hand.

The FCFCOA website has a detailed Divorce Service Kit explaining all of the requirements for service and providing copies of the relevant forms you will need to complete.

Overseas service of documents

If the documents are to be served overseas, the mode of service will depend on whether the country where they are to be served is a convention country (i.e. a country with which Australia has an agreement about civil proceedings, including the service of documents) (pt 2AB Family Law Regulations 1984 (Cth) (Family Law Regulations)).

If the country is a convention country, the documents for service must be forwarded to the registrar of the FCFCOA who will forward them to the country (reg 21AF Family Law Regulations). If the country is not a convention country, service should be effected by post or personally if possible.

The forms 1A and 1B for the application for service in a convention country can be found in sch 1 of the Family Law Regulations. In this case, the applicant will have to pay any costs arising from the overseas service.

Whereabouts of respondent unknown

If the whereabouts of the respondent is unknown, an application may be made to the court to dispense with (do away with) service. This is only granted when the court is satisfied that all reasonable efforts have been made to trace the respondent. To serve the application in another way (e.g. via social media or email) or to dispense with service altogether, you will need to complete and file an Application in a Proceeding and Affidavit forms requesting this from the court.

Proving service

The court must be satisfied that the other party has been served with the application before a divorce is granted.

As discussed above, to prove that service has taken place, it is usual to have the other party complete an Acknowledgement of Service (Divorce) form. This is then provided to the court as evidence that the application has been given to the other party. If the other party is not cooperative, it may be necessary to complete an Affidavit of Service by Hand (Divorce) (or by Post) form. These forms set out the details of how service took place. A court will not grant an order for dissolution of marriage unless there is proof of service or an order dispensing with service.

Response

The other party (the respondent) may oppose the granting of the divorce or advise the court of anything in the application with which they disagree by filing a response in the court within 28 days of being served with the application if the respondent is in Australia, or within 42 days if the respondent is overseas.

The response may be successful in stopping the divorce if it shows that the parties have not been separated for a period of 12 months or, alternatively, that proper arrangements have not been made for the welfare of the children.

The filed response must be served upon the applicant.

The hearing

When the application comes before the court, the registrar will need to be satisfied that the ground for divorce (irretrievable breakdown evidenced by separation for 12 months) exists. As the main evidence is contained in the application itself, the registrar will want to know whether any of the circumstances set out in the application for divorce have changed, in particular the arrangements for the children (if any).

The parties do not have to appear personally at court for the hearing if:

there are no children of the marriage under the age of 18 years or
it is a joint application or no response has been filed by the respondent.

The parties should appear if there are children under 18 and/or there has been a response filed.

The hearing is open to the general public, but the court does have the power to exclude persons during proceedings. Children cannot enter the courtroom.

The divorce order becomes final after one month and one day after the hearing (unless otherwise ordered by the court). After a period of one month and one day, your divorce order will be made available on the Commonwealth Courts Portal. This is an important document as it proves a divorce has occurred and should be kept for future reference.