Ending a relationship can be traumatic and highly distressing, even when both parties agree that going separate ways is the best option.

For married couples that are separating, the process undertaken to legally dissolve a marriage is called divorce and is usually a very straightforward process undertaken through the Family Law court.

Divorce doesn’t include how the parties come to an agreement about parenting or property issues.

To be eligible to apply for a divorce in Australia at least one of the parties must be an Australian Citizen, or have a valid visa and been living in Australia for at least the 12 months prior to the application.

Divorce applications can be filed by one party as a sole application, or if both parties agree to the divorce as a joint application. The application is filed with the Federal Circuit Court and Family Law Court of Australia (FCFCOA) under the jurisdiction of the Family Law Act 1975.

If you file a sole application, you are responsible for serving the other party with the application. You must serve the other party at least 28 days before the hearing date if they are in Australia. If the other party is overseas, you need to serve them at least 42 days before the hearing date.

If you’re unable to locate the other party to serve the application, contact our family law solicitors for advice on how to manage this requirement.

Applications are filed through the Commonwealth Courts Portal via an online form and are administered by the Federal Circuit and Family Court of Australia. The fee for lodging a divorce application is currently $990, however you may be eligible for a fee reduction under certain conditions. You can file your own application, or our family law specialists can do this for you.

In order for married couples to be able to legally dissolve their marriage they need to have been separated for a period of at least 12 months. This separation is used as evidence of the irretrievable breakdown of the marriage.

Separating couples that remain living in the same house can still apply for a divorce. If this is the case, you will need to submit a written statement, called an affidavit, with your application. You will also need a witness to submit an affidavit that answers specific questions about your living arrangements during the separation period.

If you are separated but living under the same roof you will need to explain how the marriage has broken down. For example:

• Division of finances
• Changes in family outings or shared activities
• Change in sleeping arrangements
• Change in household routines and sharing of household duties
• Whether or not family and friends have been notified of the separation and when.

Your affidavit will also need to include an explanation why you have continued to live together after separation and what, if any, arrangements have been made for any children of the relationship.

If the separation occurred less than two years from the date of marriage, both parties are required to attend marriage counselling and provide the Court a counselling certificate. There are circumstances where the parties will be excused from this requirement, for example, if there is a history of family violence, abuse or one party can’t be located.

You can arrange marriage counselling through the Family Relationship Advice Line. If you aren’t able to attend marriage counselling, contact our family lawyers to discuss your options for lodging a divorce application.

As part of your divorce application you also need to provide evidence of a valid marriage. For couples married in Australia you must provide your marriage certificate. If you have misplaced your certificate it’s easy to apply for a replacement from your local Births, Deaths and Marriages registry.

If you were married overseas, no longer have a copy of your marriage certificate and are unable to obtain a copy, you will need to include your marriage details and why you can’t obtain a copy of your marriage certificate in an affidavit. Also keep in mind that your overseas marriage certificate may need to be officially translated if it’s not already in English.

If you have lodged a sole application, the other party may lodge a Response opposing the application. If that is the case, contact our family lawyers for further advice on how to prepare before your Court hearing date. There are only limited grounds in which a spouse can oppose an Application.

Any Orders, Agreements or Plans entered into between you and your spouse about financial or parenting matters will need to be included in your Application. Also, if you and your former spouse have children under the age of 18, their details and the living arrangements for the children will need to be included in the Divorce Application.

If the divorce application has been submitted as a joint application, neither party is required to attend Court. If the application is lodged as a sole application and there are any children under the age of 18, you are required to attend the Court hearing. All Court hearings are held electronically and you will be sent dial in details in advance of your hearing date.

After your Court hearing your divorce will be finalised one month and one day later. You will be able to find your Divorce Order through the Commonwealth Courts portal when they become available.

The divorce order legally dissolves the marriage but does not have an impact on any parenting or financial issues. If you haven’t already begun an application with the court for property settlement, you have 12 months from the date the divorce order is made to commence an application with the Court. You can also resolve the matter outside of Court either by Consent Orders or a Binding Financial Agreement within the same 12 month time frame

Speak to our family lawyers for assistance with your parenting or property family law matter or to get assistance with your divorce application.