The process of divorce can be overwhelming. You can prepare your own divorce application or ask a lawyer to do it for you. At Eliza Legal, we believe in practising law with a heart. We strive to minimise the emotional toll of legal proceedings by offering compassionate and supportive guidance every step of the way.
Are you eligible to apply for a divorce?
To apply for a divorce, at least one party must believe the marriage is over with no chance of getting back together. You must have been separated for at least 12 months and 1 day. A marriage certificate is required, and if you don’t have one, you’ll need to get a copy from the Registry of Births, Deaths, and Marriages in the state or territory where you were married.
You, or the other party, must answer YES to at least one of the following:
- You were born in Australia or have become an Austrian citizen by descent.
- You received an Australian citizenship grant and have a citizenship certificate.
- You have been living in Australia for the last 12 months.
If you have been married for less than 2 years, you must file a counselling certificate. Additionally, if you were separated but still living together during any part of the 12 months before filing your application, you will need to provide extra evidence of the change in your marriage by preparing and submitting an affidavit.
Frequently Asked Questions
What if I’m living overseas?
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
- regard Australia as your home and intend to live indefinitely in Australia
- are an Australia citizen by birth or descent
- are an Australia citizen by grant of an Australia citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
If you are an Australian citizen or permanent resident, you are required to file a copy of your Australian passport, Australian citizenship certificate or other proof of your permanent residency.
If you are not an Australian citizen or permanent resident but have been living in Australia for at least 12 months before applying to the Court for a divorce, you will need to provide evidence that you have been resident in Australia for the past 12 months.
How much will it cost?
The filing fee charged by the Court is currently $1,100, but you may qualify for a reduced fee of $365. See here for reduced fee guidelines.
Do I need to go to court?
You’ll only need to attend the divorce hearing if you filed a sole application and have a child of the marriage under 18, indicated in your application that you wish to attend, if either party objects to the divorce being heard without the parties present, or if the respondent opposes the application by filing a Response.
How do I apply for a divorce?
There are two ways to apply for a divorce:
Sole application – With this application, you are the applicant, and the other party is the respondent. Only you as the applicant are required to sign the application. Court attendance is required only if there are children under the age of 18.
Joined application – Both parties need to sign the application. Unless otherwise stated, court attendance is not required if you file a joint application.
Applications for divorce should be eFiled online using the Commonwealth Courts Portal. This allows you to access your court file, eFile documents, and view court orders24/7 through the Court's secure website. If you are unable to access eFiling, you can contact the court, and they will provide you with the necessary forms.
Things to remember:
Divorce vs. Property Settlement
It's important to understand that obtaining a divorce is a separate legal process from finalising a property settlement. A divorce simply ends the marriage, but it does not resolve financial matters or property division. Once your divorce is granted, you have 12 months to finalise your property settlement. If this deadline is missed, you may need to seek the court’s permission to proceed. Property settlements cover the division of assets, liabilities, and financial resources, so it’s vital to act within this timeframe to avoid complications down the track.
The Importance of Updating Your Will
Updating your Will and Powers of Attorney is just as important as obtaining a Divorce. When significant life changes occur, such as a separation or divorce, it's essential to ensure that your Will reflects your current wishes. Failing to update your Will could result in your estate being distributed in a way that doesn’t align with your intentions, potentially leaving out loved ones or leaving assets to an ex-spouse. By creating or updating your Will, you can protect your family’s future and ensure your assets are distributed according to your preferences.
Talk to a family lawyer
A family lawyer can help when applying for a divorce to make the process less stress-free and to help answer any questions you may have. Eliza Legal is a leading family law firm based on the Mornington Peninsula, dedicated to providing tailored legal services with compassion and integrity. Contact us today and let’s see if we’re a good fit! We’d love to help you.
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