What is a divorce?
A divorce is when 2 people who are married to each other go through a process to become unmarried. They sign legal papers that say they’re no longer married and that they can marry other people if they want to.
A divorce is a legal process. To get a divorce, you must put in an application for divorce to a court. The court will then decide whether you can have the divorce. This is sometimes called ‘granting’ a divorce.
A divorce is a separate process from dividing your property or finances or working out your co-parenting arrangements. There are other processes to help you finalise those arrangements.
Divorce courts in Australia
In all parts of Australia other than Western Australia, divorces are handled by the Federal Circuit and Family Court of Australia.
In Western Australia, divorces are handled by the Family Court of Western Australia.
You don’t physically have to go to court to get a divorce if you don’t have any children under 18 years from the marriage. If you do have children, you don’t physically have to go to court if both you and the person you’re married to are applying for the divorce together.
Applying for a divorce
You must have been separated for at least 12 months before you can apply for a divorce. If you’ve been married for less than 2 years, you also need a certificate from a counsellor that says you’ve thought about trying to get back together.
Australia has a ‘no-fault’ divorce system. This means you don’t have to say or prove that someone has behaved badly to apply for a divorce.
The easiest way to apply for a divorce is to complete an online application on the Commonwealth Courts Portal. You need to register to use the Portal. Then you answer some questions and upload some documents – for example, your marriage certificate. You have to pay a fee for putting in a divorce application.
You and the person you’re married to can apply together for a divorce, or either of you can apply by yourself.
You can fill out and submit the application for divorce with or without help from a lawyer.
For more information on applying for a divorce, visit the Federal Circuit and Family Court of Australia – How do I apply for divorce? or the Family Court of Western Australia – Applying for a divorce. If you can’t apply online, you can contact the Federal Circuit and Family Court of Australia or the Family Court of Western Australia to get the forms you need.
Usually, the court handling your divorce says that you can have the divorce. This is called a divorce order, and it usually becomes official one month after the court makes the order.
The court can refuse to make an order if it thinks that you haven’t fully thought through how you’re going to look after any children under 18 years old from the marriage. But this is rare. The court can make the order even if you can’t agree on how you’ll look after the children.
If you were married overseas, you can apply for a divorce if one or both of you is an Australian citizen or resident or if Australia is your permanent home.
The court needs a copy of your marriage certificate.
If your marriage certificate isn’t in English, you need to get an English translation of the marriage certificate. You also need the translator to give you a special legal document called an affidavit.
In this situation, the affidavit must:
- state the translator’s qualifications to translate
- be attached to a copy of the marriage certificate together with the translation
- state that the translation is accurate and that the attached copy of the marriage certificate is a true copy of the translated marriage certificate.
Opposing a divorce
If you’ve been separated for more than 12 months, there aren’t many situations where you can oppose a divorce if your partner wants to end the marriage. Opposing a divorce means saying you don’t want the divorce or refusing to get divorced.
If you don’t want the divorce, you need to fill out a form called a Response to Divorce and go to court for a hearing.