While getting a divorce isn’t an easy situation for either party, the actual process of getting a divorce is reasonably straightforward.
We’ve created this simple step-by-step guide to help you through the process. It’s designed to be easy to understand, and written in an objective way, so you can clearly see the first steps to a divorce in Victoria.
Step 1: The requirements for divorce
Under Australian law, the only requirement for a divorce is that the marriage is considered to have reached an irretrievable breakdown. And when filing for divorce, the court doesn’t lay fault on any one party, it simply requires confirmation that the marriage has broken down.
To apply for a divorce in Australia, you must be able to prove that you and your partner have been separated for at least 12 months. This can be demonstrated by living in separate houses, or by still living under the same room, but with clearly separate lives. In this case, when filing for divorce the court will require evidence from an independent party that confirms the separation has taken place. This can be a friend or family member.
- You must also be able to prove one of the following:
- You and your partners are Australian citizens;
- You live in Australia and consider it your permanent residency; or
- You usually live in Australia, and have lived in Australia for 12 months or more prior to applying for divorce.
Step 2: Preparing your divorce application
If you’re wondering how to get divorce papers, the first steps to a divorce is to head to the Family Law Courts website to find your Application for Divorce. The Application can be completed together with your spouse, as a Joint Application, or separately, as a Sole Application.
You can choose to fill the application yourself, or have it prepared by a qualified family lawyer.
Once your Application is prepared, it has to be signed before a witness. This can typically be completed in front of a Justice of the Peace (JP). Check with your local council to find your nearest JP, and organise a meeting with them.
During this application process, you will be required to make an affirmation that the contents of your application are true and accurate, to the best of your knowledge. This can be done by swearing on a bible, or making a standard affirmation of truth.
Once the Application is filled out, signed by a witness, and affirmed as true, it’s ready to file.
Step 3: Filing your divorce application
You can file your divorce application either in person, by post, or online.
- In person. To file it in person, you must attend your Family Law Courts registry and file it yourself.
- By post. To file it by post, simply post it to your Family Law Courts. We recommended you send it via registered post.
- Online. To file your divorce application online, you can use the Commonwealth Courts Portal eFile system, which walks you through the process step by step. For this method you’ll need access to a printer and scanner, so you can print, sign, and scan all the relevant papers.
To e-file your divorce application, head to www.comcourts.gov.au and register your username and password. You’ll then receive a prompt to log in to your account and create a new password. Once you’ve logged in and changed your password you can start filing your application.
An Application for Divorce typically costs around $930, plus the Government filing fee.
You may be eligible for a reduced fee of $310 if you’re:
- Receiving Government health concessions;
- Receiving legal aid;
- Receiving Austudy, ABSTUDY, or youth allowance; or
- You’re under 18.
You may also be eligible for a reduced fee if you’re facing financial hardship
Once you’ve submitted your Application, this then gets sent to Court. Your documents will be checked to ensure completeness and catch any errors. Should anything not be complete, you’ll be notified and asked to amend any errors, prior to your Application proceeding.
Step 4: Serving your divorce application
While your partner doesn’t have to agree to the divorce, they do need to be aware that you believe the marriage is finished. So if you’re the sole applicant of your Application for Divorce, you need to arrange for your partner to be served with the divorce application, so they’re aware of the court proceedings.
However, as the applicant you’re not able to do this in person. Instead, you can serve them by mail, or have a third party serve the application on your behalf.
If you’re unable to find your spouse you must be able to demonstrate that you’ve taken all reasonable steps to locate them. In this case, you’ll need to state their address as ‘unknown’, and upload an application to seek an order that allows you to dispense with service of the application.
If this situation occurs, your family lawyer can guide you through this process.
Step 5: Your divorce hearing
Once your Application for Divorce has been filed, and any necessary divorce service proceedings are complete, you’ll then be allocated a Court Hearing date. Be aware that this can take several months from when you lodge your application.
At the hearing, if all your Application papers are complete, the court will finalise your divorce order then and there.
Do I need to attend court?
Court attendance isn’t actually required when applying for divorce, unless you have children under the age of 18, or you elect to attend in person.
Step 6: Finalising your divorce
Once the Court has made a decision on your Application, your divorce will be finalised one month and one day following the hearing. The Court will issue you with a divorce certificate, and that’s it: you’re legally divorced.
How we can help
As you can see, the divorce process itself isn’t particularly onerous—but that’s looking at things through an objective lens. Human nature and emotion can often get in the way, which do tend to muddy the waters.
At Pearsons Lawyers we’re here to ensure you get the right guidance and support during your divorce proceedings. Get in touch with us on 1300 699 688 to speak with one of our expert family lawyers in Melbourne, and book a free consultation to discuss your situation.