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Divorce

While the law about marriage is in the Marriage Act 1961 (Cth), the law about divorce is in the Family Law Act 1975 (Cth).

What is divorce?

Divorce is the legal end of a marriage. It is generally taken to revoke any gift or power conferred under a will made by either party to the marriage, see Changing a will.

A divorce does not resolve other issues that arise upon separation, such as the division of property, the provision of maintenance or the parenting arrangements for children.

These issues are to be resolved separately and preferably before applying for divorce.

You only have 12 months after a divorce order takes effect to resolve any issues regarding the division of property or the payment of maintenance or make a separate application to the Court for such orders to be made. You can apply for an extension of time within which to make the application, but the Court may or may not grant you the extension [see Family Law Act 1975 s 43(3)].

Divorce applications are generally heard in the Federal Circuit Courtand application forms and information can be obtained from their website. Whilst divorce applications can also be heard in the Family Court, filing fees in the Family Court are more expensive than in the Federal Circuit Court. See Which Court? and Applying for divorce for further information.

Grounds for divorce

On what grounds can I apply for divorce?

The only ground for divorce is the irretrievable breakdown of the marriage.

A marriage is taken to have broken down irretrievably when you and the other party to the marriage have not been living as a married couple for at least 12 months and there is no chance of you getting back together again.

It does not matter who was at fault or whether both parties want a divorce.

From when does the 12 month period begin to run?

The twelve month period begins the day one or both parties leave the marriage.

Do I need to tell the other party that I am leaving the marriage?

You do not necessarily need to tell the other party, but you must make sure that you are leaving the marriage by your actions and at least in that way, you are clearly communicating it to them.

Your actions might involve moving out of the same bedroom or accommodation or, if you are already living in separate accommodation, ceasing regular communication and commencing another relationship.

This is particularly important where you intend to separate under one roof (see Separation under one roof). In this case, although it is still not necessary, it is probably a good idea for you to tell the other that you are leaving the marriage, so there is no confusion and the other party does not hold out hope of you getting back together.

What if we tried to get back together, but then separated again?

After you separate you can try to get back together once (for up to three months), without having to start the whole 12 month separation period again. For example, if you separate for three months then get back together for two months, you only have to separate for a further nine months before you can be considered to have been separated for at least 12 months [see Family Law Act 1972 (Cth) s 50].

Isolated acts of sexual intercourse do not break the separation period [Feltus (1977) FLC 90-212].

Are there any other requirements?

Yes, if the marriage was short and/or there are children of the marriage.

Short marriages

If you and the other party were married for less than two years you cannot apply for divorce unless you:

  • provide a certificate from a counsellor, stating that you have both attended marriage counselling and considered getting back together; or
  • ask the Court for permission for the hearing of your application to go ahead even though you have not attended marriage counselling and considered getting back together.

The Court will only give permission for your application to go ahead if you provide evidence (in an affidavit) that there are special reasons why you have not attended counselling and considered getting back together.

You may need to ask for permission if, for example, you do not know the whereabouts of the other party, the other party refuses to attend counselling, or it is not appropriate due to family violence or family violence orders.

Children of the marriage

If there are children of the marriage, the Court must be satisfied that “proper arrangements in all the circumstances have been made for the care, welfare and development of children” before granting divorce [see Family Law Act 1975 (Cth) s 55A]. Children of the marriage includes any children under the age of 18 years who were living with the parties at the time of the separation.

Details about the children must be provided to the Court, including:

  • where and with whom they will live;
  • how often they see or communicate with the other parent;
  • their health and progress at school;
  • how the children are financially supported.

The Court has been reluctant to find that proper arrangements have been made where one party is not meeting their obligation to provide financial support for the children [see Opperman and Opperman (1978) 33 FLR 248].

The Registrar may ask further questions about these arrangements at the divorce hearing and, if completely satisfied, will make a declaration that, in all the circumstances, proper arrangements for the children's care, welfare and development have been made. In special circumstances, such as where the other party or the children cannot be found, these details are not needed for the divorce.

Although the Registrar has to approve the arrangements, they do not become court orders and are not enforceable as court orders. Separate applications must be made for parenting and child support orders.

Separation under one roof

What if we had to live together after we separated?

The law understands that sometimes following a separation, you and the other party may still have to share the same accommodation and one party may still perform some household services for the other, such as washing or ironing, for example, where it is necessary for the running of the home and the convenience of others who live there [see Family Law Act 1975 (Cth) s 49(2)].

This is called separation under one roof.

As long as you can prove that one or both of you left the marriage and you began living independently of each other, the 12 month separation period can start to run and will not stop merely because you continue or resume sharing the same accommodation.

As each marriage is different, the facts tending to prove a separation under one roof may vary from case to case. Normally it is necessary to provide evidence (in an affidavit) to prove that you do not share any of the usual activities of marriage, such as:

  • sleeping together in the same bed or room;
  • shopping and eating meals together;
  • entertaining friends;
  • going out together.

It will be easier to prove separation under one roof if:

  • there were good reasons why you had to continue or resume sharing the same accommodation (such as for the sake of your children or one of you could not find or afford separate accommodation); and
  • you do intend to live apart in the near future.

If you were to intend to continue living under one roof indefinitely, the Court might think there is a chance of you getting back together.

Is there anything we should do?

Yes. If you intend to rely on separation under one roof for the purposes of divorce, you should make sure that others know about it from the beginning of your separation, as the Court usually requires evidence (in an affidavit) from a neighbour, friend or relative (corroborative evidence) that there was a separation [see Pavey and Pavey (1976) 25 FLR 450].

Applying for divorce

To which court should applications be made?

All divorce applications should be made to the Federal Circuit Court [see Practice Direction 6 of 2003 (issued by the Family Court)].

Who can apply for divorce?

Before the Federal Circuit Court can hear a divorce application there must be proof that either you or the other party have some link with Australia. At the date of application, one of you must be either:

  • an Australian citizen;
  • domiciled in Australia (that is, your permanent home is in Australia); or
  • ordinarily resident in Australia and have lived in Australia for twelve months immediately before the application is made.

[see Family Law Act 1975 (Cth) s 39(3)]

Do we have to apply together?

No. Either party to a marriage can apply for divorce. It does not matter whether both parties want a divorce.

If, however both parties do want a divorce, it is possible to apply together. The main advantage of applying together is that there is then no need for one party to serve the divorce application on the other party.

Do I need a lawyer to apply for divorce?

No. You do not usually need a lawyer representing you to apply for divorce. For most people divorce is simple and they can apply for it themselves. Divorce applications are now lodged electronically. For information about this see How do I apply for a divorce?.

Instructions on how to register to lodge electronically are available at the Federal Circuit Court's page entitled How do I register for the Commonwealth Courts Portal?

If there is some special reason why you will have difficulty applying for divorce yourself (such as with the English language) or there is some other complication with your application, you may be able to get a grant of legal aid to pay for a lawyer to represent you.

If you need advice and help to fill in the divorce application or service forms or legal aid application form, you can call the Legal Helpline on 1300 366 424.

What else will I need?

You will need to provide a copy of your marriage certificate to the Court, unless the Court already has it through other proceedings. If you are unable to do so, you must provide an affidavit with your application setting out the reasons why or give an undertaking to the Court, satisfactory to the Court, that you will provide it within a certain time.

If you were married in South Australia, you can obtain a copy of your marriage certificate by application to the Births, Deaths and Marriages Registration Office which is part of Consumer and Business Services.

If you were married interstate or overseas, you will need to apply to the relevant authority in that state or country.

If your marriage certificate is not in the English language, you will also need to arrange for its translation by an accredited translator. The translation and an affidavit by the translator will need to be provided to the Court with your marriage certificate.

The translator must complete the Affidavit: Translation of Marriage Certificate and sign it before Justice of the Peace or lawyer.

Translation services are listed in the Yellow Pages.

See Federal Circuit Court Rules 2001 r 25.01.

How much does it cost?

The filing fee for a divorce application (lodged with the Federal Circuit Court) is $900 (as at 1 July 2018). If you hold a concession card or you cannot afford to pay the fee without financial hardship, you can apply for the fee to be reduced to $300 (as at 1 July 2018).

To apply for a fee reduction you need to fill in either an:

I have applied for divorce so that I can re-marry. Is it safe to set a date for my wedding?

You cannot remarry until your divorce is final and has taken effect. Therefore, it is best not to set dates for your wedding until then.

In most cases, a divorce order becomes final one month and one day after it is made. However, you do not know exactly when your application will be heard and whether the divorce order will be made at the first hearing or at a further hearing.

A further hearing may be required, for example, if you are making an application on your own and you have been unable to successfully serve the other party (see Serving a divorce application) or if the other party opposes the divorce order.

There may also be a delay with the order taking effect if the other party were to appeal it (see The making of a divorce order).

Before remarrying in Australia, the parties must also lodge a Notice of Intended Marriage, together with certificates of divorce (if the parties were previously married) with the celebrant at least one month and one day before the marriage.

See Family Law Act 1975 (Cth) s 59.

Serving a divorce application

Do I need to give the other party a copy of my application?

Unless you make the application together, you must make sure the other party receives a stamped copy of your application and the brochure called, Marriage, Families and Separation at least 28 days before the hearing date (or 42 days if the other party is overseas).

See Family Law Rules 2004 (Cth) rr 7.03 and 2.03.

This is called service.

An explanation of what you need to do to satisfy the Court is contained in both the text and a video on the Federal Circuit Court Website.

The Court will only be satisfied that you have served the other party if you file either an:

If you are confident that the other party will sign an Acknowledgment of Service (Divorce) and return it to you, you can post the documents with the Acknowledgment to the other party.

Once the other party has returned the Acknowledgment to you, you will need to complete an Affidavit of Service by Post (Divorce), sign it before a Justice of the Peace or lawyer and file it, together with the Acknowledgment.

If you are not confident the other party will sign an Acknowledgment and return it to you, you should arrange for a friend or relative over the age of 18 years, or a professional process server (listed in the Yellow Pages) to personally hand the documents to the other party.

Whoever serves the documents must ask the other party to sign the Acknowledgment and if they do so, take the Acknowledgment and an Affidavit of Service by Hand (Divorce) to sign in front of a Justice of the Peace or lawyer.

If you recognise the other party's signature on the Acknowledgment, you can also take the an Affidavit Proving Signature (Divorce) and a copy of the Acknowledgment to sign in front of a Justice of the Peace or lawyer.

All of the service documents must be filed in Court.

See Federal Circuit Court Rules 2001 (Cth) rr 25.05-25.06.

What if the other party is overseas?

If the other party is overseas the method of service will depend on whether the country is a party to the Hague Service Convention. The Attorney-General's Department keeps a copy of the convention, a list of all convention countries and the details of their central authority. This information is also available from the website for the Hague Conference on Private International Law.

If the country is a Hague Convention country the documents can only be served in a certain way. The Registrar may be able to, and in some cases must, forward the documents to that country which can take many months.

If the country is not a Hague Convention country, normal service is allowed, either personally or by post.

See Family Law Regulations 1984 (Cth) pt IIAB.

What if I do not know the other party's whereabouts?

If you do not know where to find the other party or for whatever other reason are unable to serve the other party, the Court can order that:

  • you serve someone else instead (this is called substituted service); or
  • you need not provide any service at all (this is called dispensing with service).

The Court does not usually require you to go to great expense in trying to track down the other party, especially if you are experiencing financial hardship. It is not necessary, for example, to hire a private detective. The following inexpensive inquiries are often sufficient:

  • searching the telephone book;
  • telephone the other party, tell them of your application and ask of their whereabouts;
  • telephone the other party's family and friends, tell them of your application and ask for the other party's whereabouts;
  • follow up with the other party's last known employer or solicitor, asking for a forwarding address;
  • placing advertisements in newspapers.

To apply for substituted service or dispensation from service, you need to file a separateApplication in a Case and an Affidavitsetting out the efforts you have made to find the other party and what, if any, financial hardship you are experiencing. These documents may be filed at the same time as your application or at a later time when it becomes clear that you cannot find the other party.

If you are not being represented by a lawyer, it is best to seek legal advice before making either of these applications.

You can call the free Legal Help Line for advice on 1300 366 424.

See also 'How to apply for a divorce: serving divorce papers' on the Federal Circuit Court's You Tube channel.

Opposing divorce

On what grounds can I oppose a divorce?

There are only very limited grounds for opposing a divorce.

It is not enough that you do not want a divorce or you want to get back together. As the only ground for divorce is the irretrievable breakdown of marriage, the only way to stop the divorce is to show that this has not occurred. You must prove either that you have not yet been separated for twelve months or that there is a chance you will get back together once again.

To prove that there is a chance you will get back together, you must show that both of you want to do so. Of course, this will be difficult if the other party has applied for divorce to end the marriage. You will have a better chance of getting the other party to reconsider if you can arrange, and they agree to attend, a counselling session with a counselling organisation.

What is required to oppose a divorce?

To oppose a divorce you need to prepare, file and serve a Response to Divorce form within 28 days of being served with the Application for Divorce (unless you were served outside of Australia, in which case you have 42 days).

See Family Law Rules 2004 r 3.04(1).

What if I do not oppose the divorce, but there are mistakes in the application?

If you do not oppose the divorce, but there are mistakes in the application, you should seek legal advice.

You can call our free Legal Help Line on 1300 366 424.

It may be possible to prepare and file an affidavit explaining what facts are wrong in the application, what the true facts are and what evidence supports this. Such an affidavit must be filed at least seven days before the divorce is listed for hearing.

See Family Law Rules 2004 r 3.07.

How much does it cost?

There is currently no fee to make a response opposing a divorce.

Do I have to attend the hearing?

Yes. If you file a Response to Divorce both you and the other party must then attend the hearing.

See Family Law Rules 2004 r 3.04(2).

The divorce hearing

Who will hear my application?

Divorce applications are normally heard by sessional registrars engaged by the Federal Circuit Court.

A registrar is a court lawyer who has been given the power to perform particular tasks, such as grant divorces.

When will my application be heard?

If you make an application together, it will be listed at least 28 days after you file it.

If either party makes an application on their own, it will be listed at least:

  • 42 days later if the other party is in Australia; and
  • 56 days later if the other party is overseas.

Depending on the business of the Court, it may be listed more than 28, 42 or 56 days after you file it.

[see Family Law Rules 2004 r 3.01]

Do I need to attend the hearing?

If you do not attend the hearing of your application, it may be dismissed in your absence [see Family Law Rules 2004 r 3.08(2)(a)].

However, you can request that your application be heard in your absence if you are making the application together (even if there are children of the marriage under the age of 18 years). However, the Court must still be satisfied that proper arrangements have been made for the care, welfare and development of your children [see Family Law Rules 2004 r 3.10].

If you are making an application on your own, you can still request that it be heard in your absence provided that the other party does not oppose it and there are no children of the marriage under the age of 18 years [see Family Law Rules 2004 r 3.09].

If you are unable to attend in person, you may ask the Court in writing for permission to appear by telephone at least seven days before the hearing [see Family Law Rules 2004 r 5.06].

Is there anything else I should do before the hearing?

Yes, you should telephone the Family Law National Enquiry Centreon 1300 352 000 a week or so before the hearing to confirm the time your divorce will be heard.

What should I do at the hearing?

You should arrive at least 15 minutes early.

When you arrive at the court building you should look for the name and number of your case and the number of the courtroom, as there are a number of courtrooms where cases are heard. A list of the cases being heard is displayed in the foyer of the court building.

If possible, it is a good idea to locate the court orderly at your courtroom and notify them that you are there. Sit close by the courtroom where you will hear when the court orderly calls on your case.

When the court orderly calls on your case, you will go into the courtroom and sit at the long table (the bar table) facing the Registrar.

The hearing of the divorce is not likely to take more than a few minutes. The Registrar must be satisfied that the other party has been correctly served and that the twelve month separation period and other requirements have been proved.

The making of a divorce order

When will the divorce order take effect?

Once the Registrar is satisfied that the other party has been served and the twelve month separation period has passed (and any other requirements, such as counselling for short marriages have been met) the Registrar will grant a divorce order. If the parties are present at the hearing, they would thank the Registrar and leave the courtroom.

The divorce order automatically becomes final and takes effect one month and one day later and is usually posted to each of the parties. Technically the parties are still married until the order becomes final, and they cannot remarry until it becomes final.

See Family Law Act 1975 (Cth) s 55(1)(a).

Can the divorce order take effect any faster?

This waiting period can be shortened in special circumstances.

See Family Law Act 1975 (Cth) s 55(2)(b).

What if we get back together?

The Court may rescind (cancel) a divorce order before it becomes final if the parties get back together.

The parties would need to jointly file an Application in a Case.

See Family Law Act 1975(Cth) s 57.

See also Family Law Rules 2004 r 3.12.

What if the other party gave false evidence and/or forged my signature?

The Court may rescind (cancel) a divorce order before it becomes final if there has been a miscarriage of justice and, if it thinks fit, order that the proceedings be re-heard.

See Family Law Act 1975 (Cth) s 58.

See also Family Law Rules 2004 r 3.12.

Can I appeal against a divorce order?

Yes, you can appeal a divorce order by filing anApplication for Review within 28 days of the date of the order.

If either party appeals against the terms of a divorce order, the order be automatically delayed in taking effect until one month after the appeal is heard and determined [see Family Law Act 1975 (Cth) s 55(3)].

No appeal can be made after a divorce order has taken effect and become final [see Family Law Act 1975 (Cth) s 93].

If you are thinking about appealing your divorce order, you should seek legal advice.

You can call the free Legal Help Line on 1300 366 424.

Checklist

Work out whether you can apply

  • Do you or your partner have a link to Australia?
  • Do you have grounds for divorce and meet all of the requirements?
  • Have you been separated from the other party for at least 12 months?
  • Have you been married less than two years? If so, have you either both attended counselling and considered getting back together or, even though you have not, are there special circumstances why the hearing of your application should go ahead
  • Have proper arrangements been made for the children?

Get instructions on how to apply for a divorce

Divorces are now lodged electronically and information about this process can be found on the Federal Circuit Court's website (see How do I apply for a divorce?).

After you have filled out the application you will need to sign it in front of a Justice of the Peace or lawyer.

Gather supporting documents

  • Do you have a copy of your marriage certificate?
  • If your marriage certificate is not in the English language, do you have an accredited translation and an affidavit by the translator?
  • Do you need to file any other affidavits?
  • Were you separated under one roof? If so, you will need to file an affidavit providing evidence that you were separated under one roof.
  • If you have been married for less than two years, are there special circumstances why you have not attended counselling and considered getting back together? If so, you will need to file an affidavit outlining what those special circumstances are.

File the application and supporting documents

Make two photocopies of the application and supporting documents.

The easiest way to file a divorce application in South Australia is to either take or post it to the Family Law Courts Registry at:

Roma Mitchell Commonwealth Law Courts Building

3 Angas Street, Adelaide SA 5000

GPO Box 9991 Adelaide SA 5001

You will need to pay a filing fee by cash, cheque, money order or credit card.

If you are paying by credit card, you can use the Credit Card Payment Form.

The court stamps and returns the copies which have the date of the hearing recorded on them.

Serve the application and supporting documents

If you are making an application on your own, you will need to serve the other party.

Do you know the whereabouts of the other party?

If not, you will need to do what you can to find out.

You may need to consider making an application for substituted service or dispensation of service. You would need to file an Application in a Case and an Affidavit. You should get legal advice.

You can call the free Legal Help Line on 1300 366 424 if you need advice or help with your divorce application.

    Divorce  :  Last Revised: Tue Nov 28th 2017
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.