Last updated 21 November 2016
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 Court of Australia.
In order to commence proceedings for a divorce, it is necessary to prepare an application for divorce. The form is prepared at least in triplicate (three copies). Usually, this consists of an original and two photocopies of each page of the completed document. The applicant will also need a copy of the marriage certificate. If the marriage certificate is in a foreign language, a written translation from a translator is required, as well as an affidavit by the translator as to the contents of the marriage certificate.
Filing of documents
All relevant documents must be filed in the Federal Circuit Court of Australia. The filing fee is $845 (although this should be confirmed before filing). A reduced fee of $280 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). The form on which to make an application for a reduced filing fee is available from the court registry or from the Federal Circuit Court of Australia.
At the time of filing, the court sets a hearing date for the application to go before a deputy registrar of the court. If the respondent resides in Australia, the period between the time of filing the application and the hearing date is usually eight weeks. The court has power to increase or reduce time limits. 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).
Service of documents
Once a divorce application is filed with the court, the applicant is required to serve a copy of it 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. It is not necessary to serve an application for dissolution 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, however, special rules about how an application must be served.
Spouses must not personally serve documents on each other. They can, however, 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, and it is recommended that the children of the marriage not be involved in serving the documents on a former spouse.
Service can also take place by post. This requires that a copy of the court-sealed application and the brochure be sent by prepaid post to the other party’s last known address.
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 Family Court who will forward them to the country. If the country is not a convention country, service should be effected by post or personally if possible.
The form of the application for service in a convention country is shown in 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 are unknown, 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.
The court must be satisfied that the other party has been served with the application before a divorce is granted.
To prove that service has taken place, it is usual to have the other party complete an Acknowledgement of Service (Divorce). 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. 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.
The Federal Circuit Court has a very detailed kit explaining all of the requirements for service and providing copies of the relevant forms.
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.
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.
Where there are no children of the marriage and no response has been filed, neither party has to appear personally. If there are children of the marriage under the age of 18 years, or a response has been filed to the application, one of the parties must attend the hearing. It is usual in those circumstances for the applicant to attend. The respondent does not have to be present.
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.
After a period of one month, the court forwards the divorce order to the parties, or if they are represented, to their lawyers. This is an important document as it proves a divorce has occurred and should be kept for future reference.
In most situations, obtaining a divorce is a straightforward matter and many people prepare and file the application themselves.
Advice about the relevant law and procedures is available from community legal services, and the Family Court and Federal Circuit Court registries.