Going through a divorce can be tough, but you don’t have to face it alone. Our Family Law Service have put together some of the most common questions we’re asked relating to the divorce process to provide clarity and support to anyone else going through this challenging life change.
Can I apply for divorce in Australia?
There are a few criteria you will need to fulfil to be eligible to divorce in Australia.
- You and your spouse need to have been legally married.
- You or your spouse need to be:
- An Australian citizen (by birth, descent, or by grant of citizenship); or
- Live in Australia and regard Australia as your permanent home; or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce;
- You and your spouse must have been separated for at least 12 months with no possibility of getting back together.
I was married overseas. Can I get a divorce in Australia?
Yes, even if you were married overseas, you can still apply for divorce in Australia as long as the eligibility criteria are met.
There is no requirement to register an overseas marriage in order to apply for divorce in Australia.
How do I show I was legally married?
This requirement is usually satisfied by producing a copy of your marriage certificate in English. If you were married in Australia, you can obtain a copy of your marriage certificate from the relevant births, deaths and marriages registry in the state in which you were married.
If you aren’t able to obtain a copy of your marriage certificate, you should obtain legal advice.
My marriage certificate isn’t in English. What do I do?
If you were married overseas and your marriage certificate is not in English, you must have it translated into English by an accredited translation service.
The translator will need to complete an ‘Affidavit – Translation of Marriage Certificate’ which will need to be filed with your Application for Divorce.
To find an accredited translator, contact the National Accreditation Authority for Translators and Interpreters (NAATI) on 02 9267 1357 or at www.naati.com.au.
I have a copy of my marriage certificate that was translated by an overseas service. Can’t I just use that?
Yes, you can have the certificate translated overseas. You must however be able to provide the qualifications of that translator, and they must complete an Affidavit Translation of Marriage Certificate.
The Affidavit Translation of Marriage Certificate should attach a copy of the original marriage certificate, the translated marriage certificate, and that translator’s qualifications. The Affidavit must also be sworn or affirmed before a Justice of the Peace or Lawyer.
If you are unable to obtain the above documents from the original translator, you will need to have the marriage certificate translated again by an accredited translator who can.
What if we still lived together while we were separated?
You can still apply for a divorce if you were separated but still lived together for any part of the 12 months before applying for a divorce.
However, you will need to provide additional evidence to prove that you have separated.
We separated, got back together for a couple of months, and then separated again. Would the 12-month separation period start from the first time we separated or the second time?
If you got back together after your first separation for more than 3 months, the 12 month period starts after the second separation.
If you got back together after your first separation for less than 3 months, you can generally add up the period before reconciliation and the period after the second separation to make the total of at least 12 months.
Can I get divorced if I have been married for less than 2 years?
Yes, you can get divorced if you have been married for less than 2 years. However, you will need to include a certificate from a counsellor which says that you and your spouse have attended counselling and/or have considered the possibility of reconciling.
If you can’t attend counselling, you will need to include an affidavit explaining why you are not able to go to marriage counselling, for example, if it is unsafe or you cannot locate your spouse.
I’ve been married for a short period of time. Can’t I just get an annulment?
No, short duration of marriage is not a ground for annulment in Australia. Divorce ends a marriage that was valid, while an annulment is saying the marriage was never valid in the first place.
It is appropriate to apply for an annulment in the following circumstances:
- You or your spouse were already married when you married each other;
- You and your spouse are related, such as being siblings or parents and children;
- You and your spouse did not follow the procedural rules when you got married, for example, you didn’t have two witnesses or an authorised celebrant;
- You or your spouse were underage when you married, and did not have special permission under Section 12 of the Marriage Act 1961 (Cth) to marry;
- You or your spouse did not consent to the marriage due to force, lies, mistaken identity, or were not able to understand what was happening due to mental incapacity.
I thought that divorces were automatic after 12 months of separation?
Divorces are not automatic.
You or your spouse will need to make an application to the Federal Circuit and Family Court of Australia seeking a divorce. The divorce will also need to be granted by the Court.
How much will it cost to get a divorce?
There is a difference between court filing fees and fees charged by lawyers to undertake professional work. The court filing fee for divorce is $1,100. There are no rules that require a party to reimburse the other party for all or part of this application fee. Whoever files the application will need to pay at the time of filing.
You might be eligible for the reduced fee of $365. The court will look at this eligibility criteria to determine this.
If you are filing a joint application, both parties must be eligible for the reduced fee. If you are filing a sole application for divorce, only the applicant needs to qualify for the reduced fee.
I have difficulty using computers. Can I file a hard copy Application for Divorce?
Typically, divorce applications should be filed online using the Commonwealth Courts Portal.
If you are unable to e-File you can contact the Court and they may be able to provide you with the appropriate forms and information about how to file.
People keep talking about ‘the portal’ – what are they talking about?
The Commonwealth Courts Portal is a website where parties to family law proceedings (including divorce) can file applications and documents relevant to their matter.
Parties need to make an account so they can access the information about their Court proceeding.
For example, this is where you will apply online for a divorce, pay court fees and be able to download any Orders.
My spouse agrees to getting divorced. Do I still have to serve the documents on them?
If you and your spouse are filing a joint application, there is no need to serve the documents on them.
If you have filed a sole application for divorce, you will still need to serve the documents on your spouse, even if they have told you they agree to the divorce.
How do I serve documents?
Your spouse needs to be served the documents in person by someone over 18 who is not you, or they need to be served by post.
If you have tried both of the above methods and still can’t serve your spouse, you should get legal advice.
Do I have to attend the divorce hearing?
You must attend the divorce hearing if:
- You filed a sole application for divorce and there is a child of the marriage under 18 years;
- You indicated in your application that you wish to attend;
- Either party has objected to the divorce being heard in the absence of one party;
- Your spouse files a Response to the application you filed.
In all other instances, provided you have set out the circumstances of your separation and filed the required documents with the Court, you should not need to attend the court hearing. You can double check if your attendance is required by contacting the Court registry where you filed.
How do I attend the divorce hearing?
Divorce hearings in the Sydney and Parramatta registries generally occur by telephone. The court does not call you. You will need to dial into the hearing at the hearing time using details that are available on the Commonwealth Courts Portal.
What do I need to bring to the hearing?
Make sure you have access to any documents that have been filed in the proceeding. You should be in a quiet and secure space free of interruptions or distractions. Remember to keep your microphone muted until you are invited by the Registrar or the Registrar’s Associate to address the court.
I attended my divorce hearing last week, but I can’t download my divorce order from the Commonwealth Courts Portal. Why?
If the court grants the divorce, it becomes final one month and one day after the hearing date.
After that time, you can download the divorce order from the Commonwealth Courts Portal.
Do property settlement and arrangements for children have to happen at the same time as the divorce?
Property settlement and parenting applications are separate to divorce proceedings.
If you do have children under 18, you will need to satisfy the Court in your divorce application that proper care and living arrangements for those children have been made. This includes children living with you that may not be your biological children, for example, step-children, foster children, or children from a previous relationship.
In relation to property matters, you have 12 months from when the divorce is finalised to make an application for Court orders regarding property settlement or spousal maintenance. You don’t have to wait until you are divorced to start dividing your property; you can start this process as soon as you are separated.
What can MLC provide assistance with?
MLC provides advice and assistance for the following matters:
- Legal aid eligibility for family law matters
- Divorce (including matters where the parties were married overseas)
- Mediation
- Parenting (including who makes decisions for the child and who the child lives with or spends time with)
- Property settlements and spousal maintenance, with specific exceptions (see below)
What does MLC NOT provide assistance with?
- Child support
- Care and protection matters
- Wills, estates and probate
- Binding Financial Agreements
- Taxation issues arising out of family law property settlements
- Complex property settlement matters involving family companies or trusts
Information accurate as of 28th March 2025. The information above is not legal advice. If you have a legal issue, please get specific legal advice.
