To which court should applications be made?
All divorce applications should be made to the Federal Circuit Court [see Practice Direction 6 of 2003 (issued by the Family Court)].
Who can apply for divorce?
Before the Federal Circuit Court can hear a divorce application there must be proof that either you or the other party have some link with Australia. At the date of application, one of you must be either:
- an Australian citizen
- domiciled in Australia (that is, your permanent home is in Australia), or
- ordinarily resident in Australia and have lived in Australia for twelve months immediately before the application is made.
[see Family Law Act 1975 (Cth) s 39(3)]
Do we have to apply together?
No. Either party to a marriage can apply for divorce. It does not matter whether both parties want a divorce.
If, however both parties do want a divorce, it is possible to apply together. The main advantage of applying together is that there is then no need for one party to serve the divorce application on the other party.
Do I need a lawyer to apply for divorce?
No. You do not usually need a lawyer representing you to apply for divorce. For most people divorce is simple and they can apply for it themselves. Divorce applications are now lodged electronically. For information about this see How do I apply for a divorce?.
Instructions on how to register to lodge electronically are available at the Federal Circuit Court's page entitled How do I register for the Commonwealth Courts Portal?
If there is some special reason why you will have difficulty applying for divorce yourself (such as with the English language) or there is some other complication with your application, you may be able to get a grant of legal aid to pay for a lawyer to represent you.
If you need advice and help to fill in the divorce application or service forms or legal aid application form, you can call our Legal Helpline on 1300 366 424.
What else will I need?
You will need to provide a copy of your marriage certificate to the Court, unless the Court already has it through other proceedings. If you are unable to do so, you must provide an affidavit with your application setting out the reasons why or give an undertaking to the Court, satisfactory to the Court, that you will provide it within a certain time.
If you were married in South Australia, you can obtain a copy of your marriage certificate by application to the Births, Deaths and Marriages Registration Office which is part of Consumer and Business Services.
If you were married interstate or overseas, you will need to apply to the relevant authority in that state or country.
If your marriage certificate is not in the English language, you will also need to arrange for its translation by an accredited translator. The translation and an affidavit by the translator will need to be provided to the Court with your marriage certificate.
Translation services are listed in the Yellow Pages.
See Federal Circuit Court Rules 2001 r 25.01.
How much does it cost?
The filing fee for a divorce application (lodged with the Federal Circuit Court) is $865 (as at 1 July 2016). If you hold a concession card or you cannot afford to pay the fee without financial hardship, you can apply for the fee to be reduced to $290.
To apply for a fee reduction you need to fill in either an:
I have applied for divorce so that I can re-marry. Is it safe to set a date for my wedding?
You cannot remarry until your divorce is final and has taken effect. Therefore, it is best not to set dates for your wedding until then.
In most cases, a divorce order becomes final one month and one day after it is made. However, you do not know exactly when your application will be heard and whether the divorce order will be made at the first hearing or at a further hearing.
A further hearing may be required, for example, if you are making an application on your own and you have been unable to successfully serve the other party (see 'Serving a divorce application') or if the other party opposes the divorce order.
Before remarrying in Australia, the parties must also lodge a Notice of Intended Marriage, together with certificates of divorce (if the parties were previously married) with the celebrant at least one month and one day before the marriage.
See Family Law Act 1975 (Cth) s 59.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.