Apply for a divorce

To apply for a divorce, you must meet these criteria: 

• you must be legally married
  
• your marriage must have broken down irretrievably 
  
• you must have been separated from your spouse for at least 12 months
  
• you or your spouse must be an Australian citizen or have been living in Australia for at least the last 12 months prior to filing
  
• you and your spouse have made appropriate arrangements for the care of any child of your relationship, if relevant.

In Australia, divorces are granted on a no-fault basis. This means you don’t need to show to the Court who was at fault for the breakdown of your marriage. You only need to show that your marriage has irretrievably broken down - that there is no chance you will reconcile with your spouse.

You will not need a divorce if you were in a de facto relationship or Aboriginal customary marriage.

Resources

• Checklist: Applying for a divorce order (PDF, 86 kb)

A de facto relationship is a relationship between two people who live together on a genuine domestic basis, and who are not married or related by family. This includes same-sex couples.

If you were in a de facto relationship, you don’t need to apply to for a divorce. 

You can still apply to the Court for Parenting Orders and Property Orders. 

For more information about negotiation a parenting agreement or property settlement, see Parenting and Finance and property.

Aboriginal customary marriages aren’t recognised as legal marriages in Australia - they are treated as de facto relationships under the law. 

If you and your spouse were in an Aboriginal customary marriage, you don’t need to apply for a divorce.

You can still apply to the Court for Parenting and Property Orders.

For more information about negotiation a parenting agreement or property settlement, see Parenting and Finance and property.

You can apply for a divorce in Australia if either you or your spouse:

• are an Australian citizen, or
  
• regard Australia as your home and intend to live here indefinitely, or
• ordinarily live in Australia and have done so during the 12 months immediately before filing for divorce. 

If you were married overseas, you can get a divorce in Australia as long as:

• you or your spouse are an Australian citizen or live in Australia
  
• your marriage overseas was a valid legal marriage according to the laws of the country where you got married. 
  

Sometimes overseas marriages may be classified as de facto relationships depending on the validity of the ceremony in that country. If you are not sure if the marriage was valid, you should check your marriage status on your immigration papers or get legal advice.

If you were validly married, you must file a copy of your Marriage Certificate with your Application for Divorce. 

If your Marriage Certificate is not in English, you will need to file an English translation and an Affidavit completed by the translator. 

You may have to pay a fee to have your Marriage Certificate translated. 

For more information about getting a translation of your Marriage Certificate, see Interpreting & Translation on the Multicultural NSW website. 

If you can’t get a copy of your foreign Marriage Certificate, you should get legal advice.

You must have been separated from your spouse for at least 12 months before you can apply for a divorce. The 12 month period is calculated from the date of separation until the date the Application for Divorce is filed. 

If you file an Application for Divorce before 12 months has passed, your application will be adjourned or dismissed.

You can still apply for a divorce if you and your spouse lived together as a married couple for one period of less than three months after separating.

You can count the first period of separation towards the 12 month minimum separation period. You can’t count the time you lived together as a married couple.

If you lived together as a married couple for more than three months after separating, you must begin counting the 12 months minimum separation period from the second date of separation. You can’t count the first period of separation towards the minimum separation period.

If you and your spouse have a child under 18 years old, the Court needs to be satisfied that you have made proper arrangements for your child before it will grant you a divorce. 

A child of the marriage includes:

• a child of you and your spouse, including a child born before the marriage or after separation
  
• a child adopted by you and your spouse 
• a child that was treated as a member of your family prior to separation, for example, a step child or foster child. 
  

You must include the details of arrangements in your Application for Divorce. The Court needs to be satisfied that:

• the appropriate arrangements have been made, or 
  
• there are reasons why a Divorce Order should be made even though the appropriate arrangements have not been made. 
  

Divorce and parenting are separate processes under the law. The Court does not make Parenting Orders or Property Orders at the same time as a Divorce Order. 

For more information about negotiation a parenting agreement or property settlement, see Parenting and Finance and property.

To get a divorce, you must prove to the Court that you and your spouse are married. You can do this by giving the Court a copy of your Marriage Certificate. 

If you don’t have your Marriage Certificate, you will need to apply to the Registry of Births, Deaths and Marriages in the state you were married in for a copy and pay the fee.  

Counter services at NSW Registry of Births, Deaths & Marriages are no longer available. If you can’t apply online, you can either use a drop box at the Registry office or lodge a paper application in person at a Service NSW service centre.

If you purchase a priority certificate, you can click and collect your Marriage Certificate from the Chippendale or Parramatta NSW Registry of Births, Deaths & Marriages.

If you were married in NSW, see Applying for an official marriage certificate on the NSW Government website. 

Translation of Marriage Certificate

If your Marriage Certificate is not in English, you will need to file an English translation and an Affidavit: Translation of Marriage Certificate completed by the translator.

To download a copy of this form, see Affidavit translation of marriage certificate on the Federal Circuit and Family Court of Australia website.

You may have to pay a fee to have your Marriage Certificate translated. 

Resources

• Instructions for completing an Affidavit: Translation of Marriage Certificate (PDF, 112 kb)
• Sample Affidavit: Translation of Marriage Certificate (PDF, 81 kb)

For more information, see Interpreting & Translation on the Multicultural NSW website. 

If you can’t get a copy of your Marriage Certificate, you must prepare an Affidavit explaining why.

For more information, see Step by step guide: Preparing your Affidavit.

To apply for a divorce in Australia you or your spouse must:

• be an Australian citizen, or
  
• regard Australia as your home and intend to live here indefinitely, or
  
• ordinarily live in Australia and have done so during the 12 months immediately before filing your Application for Divorce. 
  

If you were born overseas and have become an Australian citizen, you must provide evidence of your citizenship with your application. You can do this by giving the Court a copy of your Citizenship Certificate or Australian passport.   

If you were born overseas but live in Australia, you must provide evidence that you are living here legally. You can do this by giving the Court a copy of your visa documents. 

If you and your spouse have been married less than two years, you will need to get a Counselling Certificate from a family law counsellor to file with your Application for Divorce. 

The two years is calculated from the date of the marriage to the date of filing the Application for Divorce. 

Even if you have been married for less than two years, you and your spouse must still be separated for at least 12 months before you can apply for a divorce. Alternatively, you can wait until you have been married for more than two years before you apply for a divorce.  

For more information and for assistance in finding a family law counsellor, see Separation and counselling on the Family Relationships Online website. 

Resources

• Instructions for completing a Counselling Certificate for applicants married less than 2 years (PDF, 92 kb)
• Sample Counselling Certificate for applicants married less than 2 years (PDF, 64 kb)

If you are unable to attend counselling with your spouse, due to domestic violence or for some other reason, you must ask the Court’s permission to apply for a divorce. You ask the Court’s permission by filing an Affidavit – Marriage less than 2 years non-filing of counselling certificate with your Application for Divorce. In your Affidavit, you will need to explain:

1. Why you and your spouse have not attended counselling, for example, if you can’t locate your spouse explain the attempts you have made to find them, or if your spouse refuses to attend counselling explain the attempts you have made to invite them to attend
   
2. Any special circumstances, for example, if there is a history of violence and abuse in the marriage and it is not safe for you to attend counselling with your spouse.
   

Your safety is important. If you feel unsafe or are experiencing any violence, contact the police, a domestic violence counsellor or get legal advice.

For more information, see Step by step guide: Preparing your Affidavit.

If your surname on your Application for Divorce is different from your married or maiden names, you must:

• file a copy of your Change of Name Certificate with your application
  
• prepare an affidavit explaining why your name is different to your married or maiden name.
  

For more information, see Step by step guide: Preparing your Affidavit.

If you change your surname back to your maiden name after submitting your Application for Divorce, you must file a copy of your Change of Name Certificate with the Court before the hearing.

If you don’t have a copy of your Change of Name Certificate you will need to get one.

Counter services at NSW Registry of Births, Deaths & Marriages are no longer available. If you can’t apply online, you can either use a drop box at the Registry office or lodge a paper application in person at a Service NSW service centre.

If you purchase a priority certificate, you can click and collect your Marriage Certificate from the Chippendale or Parramatta NSW Registry of Births, Deaths & Marriages.

For more information, see Replace certificates after a change of name certificate on the NSW Government website.

A Family Violence Order is an order made by a state or territory court to protect a person from family violence. Family Violence Orders are also known as Apprehended Domestic Violence Orders (ADVOs). 

If there is a Family Violence Order in place concerning you and your spouse, you must include information about this your Application for Divorce. You have a duty to provide the Court with all information and documents relevant to your case. You can attach a copy of any Family Violence Order to your application.

Your safety is important. If you feel unsafe or are experiencing any violence, contact the police, a domestic violence counsellor or get legal advice.

You must provide the Court with information about any interim or final court orders relevant to you and your spouse including:

• Parenting Orders or Parenting Plans
  
• Child Protection Orders
  
• Binding Financial Agreements
  
• Property Orders.
  

You can attach a copy of the documents to your application. 

Before you can apply for a divorce, you may need to prepare an Affidavit.

An Affidavit is your evidence that the Court will use to decide whether to grant you a divorce. 

You will need to prepare an Affidavit if:

• you don’t have a copy of your Marriage certificate
  
• you and your spouse lived in the same home during the 12 month minimum separation period
  
• you and your spouse have been married for less than two years, and have not attended counselling
  
• your surname is different from your married or maiden names
  
• you are having trouble serving your spouse or do not know where they are.
  

You can address all these issues in one Affidavit.

If you are filing a joint Application for Divorce, your spouse will also need to prepare an Affidavit.

You may also need to get an affidavit from a Third Party.

For more information, see Step by step guide: Preparing your Affidavit.

All Applications for Divorce should be filed online through the Commonwealth Courts Portal.  

You will need access to a printer and scanner.

You have to pay a fee when you file your Application for Divorce.

For more information, see Step by step guide: Apply for a divorce order.

When filing an Application for Divorce, there are two different fee reductions you make an:

• Application for reduction of payment of divorce or decree of nullity - general
  
• Application for reduction of payment of divorce or decree of nullity - financial hardship.
  

If you are filing a joint Application for Divorce with your spouse, you both must be eligible for the fee reduction or the full fee will apply. If you are filing a sole Application for Divorce, only you need to be eligible for the fee reduction because you are solely responsible for paying the fee. Your spouse won’t have to pay a fee.

General

You may be eligible for a general fee reduction if you:

• have a government concession card, for example, health care card or a pensioner concession card
• have been granted Legal Aid
  
• receive youth allowance, Austudy or ABSTUDY payments
  
• are under 18 years old
  
• are in prison or are otherwise detained in a public institution. 
  

Financial hardship

If you are not eligible for a fee reduction, you can apply for financial hardship.

If you are successful, you will be able to pay the reduced fee. 

Fee reductions only apply to court fees. They don’t apply to service fees, transcript fees, or fees for copies of Divorce Orders.

The Federal Circuit and Family Court of Australia website contains Guidelines for reduced fee – divorce and decree of nullity application.

For more information, see Step by step guide: Apply for fee reduction.

There are different rules that you must follow to serve your spouse in prison. It is important that you follow these rules so the Court can hear your application.  

If you don’t follow these rules, your Application for Divorce may be adjourned or dismissed.

For more information, see Step by step guide: Serve your spouse in prison.