Article written by Belinda Eldridge, a Chartered Accountant and the Founder and Managing Director of Divide. The team at Divide help smart couples who have separated to financially separate in a cost-effective manner without using lawyers. She is also a proud single mother of two boys.
‘How do I file for a divorce?’ It is a question that is regularly asked by single mums on the Single Mum Vine, so I wanted to explain how you can follow the excellent Court resources to file for a divorce without a lawyer and save yourselves some money (plus be proud of doing it by yourself)!!
Divorce and property settlement are two separate issues. The granting of a divorce does not determine issues of property settlement and parenting arrangements – it simply recognises that the marriage has ended.
Once your divorce becomes final, you and your ex have a time limit of 12 months to apply for a property settlement. It is therefore advisable, if possible, to finalise your property settlement before applying for a divorce, as you are not impacted by any time limits.
How to file for a Divorce
The Federal Circuit Court of Australia and the Family Court of Western Australia has the power to grant a divorce under Part VI of the Family Law Act 1975. If you meet the criteria to apply for a divorce in Australia, you can choose to apply for a divorce on your own or jointly with your spouse.
The Court provides detailed instructions on How to Apply for a Divorce via these links:
These allow you to prepare your own divorce application or ask a lawyer to do it for you. The process of applying for a divorce is the same for all states of Australia, but if you reside in Western Australia you will file in the Family Court of Western Australia, for all other states you will file in the Federal Court of Australia.
The Family Law Act 1975 has established a no-fault divorce principle in Australian Law – this means that a court does not consider which partner is at fault in the marriage breakdown. The only ground for a divorce is that the marriage broke down (the “why” is not relevant) and there is no reasonable likelihood that the parties will get back together.
If you need assistance to complete the application for divorce or are unsure about whether you are eligible to file for divorce you should obtain legal advice. There are free legal advice options available to assist you. Court staff will answer questions, but they cannot provide you with legal advice.
Are you eligible to apply for a divorce?
The following step by step guide outlines the most common questions that couples need to consider to decide if they meet the criteria to apply for a divorce. If you can answer “YES” to questions 1 to 4 below, then you should be eligible to apply for a divorce.
1. Are you an Australian resident or citizen
To be eligible to apply for divorce in Australia, you or your spouse must answer yes to at least one of the following:
- Lawfully present in Australia and intend to continue living in Australia
- Are an Australian citizen
- Live in Australia and have done so for 12 months immediately before filing for divorce
2. Have you been separated for at least 12 months and 1 day?
3. Do you have your marriage certificate?
4. Has your marriage broken down and there is no reasonable likelihood that you will get back together?
The cost of getting a divorce
The fees charged by the Court to process an application for divorce are $865 (as at Feb 2018). Fees are reduced to $290 if all applicants meet the requirements for reduced fees. For more details click below:
Register and complete online interactive Application for Divorce
If you are eligible to apply for a divorce, and you want to lodge the application yourself (or lodge a joint application with your ex) you need to register with the Commonwealth Courts Portal.
If you are already a registered user with the Commonwealth Courts Portal (“the Portal”), use those details as all proceedings (past and future) between yourself and your ex must be lodged under that same user name.
The following Circuit Court of Australia link and Family Court of WA link explains how to register for the Commonwealth Court Portal and eFile an application for divorce. Once you have logged into the Portal you will select “Application for divorce” and then either the “Federal Circuit Court of Australia” or “Family Court of Western Australia” (if you reside in WA).
What to do if you get stuck applying for a divorce?
If you are not able to eFile (as you wish to request a reduction in fees on the basis of financial hardship) or you have any questions when completing your divorce application form, Court staff are very approachable and helpful – and you do not pay for their time or assistance!!
Or get further contact options with the Commonwealth Courts here. LIVE CHAT is a very helpful and efficient service for support during business hours.
Do I have to attend the divorce hearing?
You are not required to attend the court hearing if:
- There is no child of the marriage aged under 18 years OR
- You have made a joint application with your spouse (even if there is a child of the marriage aged under 18).
You are required to attend the court hearing if you have made a sole application and there is a child of the marriage aged under 18 years. If it is difficult for you to attend the court in person, you may ask the Court to appear by telephone.