Respond to an Application for divorce

Information about how to respond to an Application for divorce.

Have you been served?

‘Serving’ a document means giving someone a document, or bringing a document to their attention. If you have ‘been served’ with documents, it means that you have officially received them.

If you have been served with an Application for divorce, your spouse has applied for a divorce order to legally end your marriage. This makes them the applicant and you the respondent in your case.

Your spouse must serve you with a sealed copy of their Application for divorce, unless they have an order dispensing with service. The court can’t make a divorce order unless you have been served.

Your spouse can serve you:

by post, or
in person.

If you have been served by post, you should sign and send back the Acknowledgement of Service. Your spouse will file this document with the court to prove that you have been served. If you don’t, your spouse will have to serve you in person.

Your spouse can’t serve you in person. They must arrange for someone over the age of 18 to do this. This can be a friend, family member, sheriff officer, or professional process server.

Time limit

Your spouse must serve you with a sealed copy of their Application for divorce at least:

28 days before the hearing, if you are in Australia, or
42 days before the hearing, if you are overseas.

If you are in prison, there are different rules your spouse must follow.

Divorce documents

Your spouse must serve you with:

a sealed copy of their Application for divorce
a sealed copy of their Affidavit for eFiling application (divorce)
a sealed copy of their Affidavit, if required
a copy of the Marriage, families and separation (prescribed brochure)
any other documents filed with the court.

When you are given these documents, you will be asked to sign the Acknowledgement of service.

How to respond

If you agree with your spouse’s Application for Divorce, you don’t have to do anything. However, you should send back the Acknowledgement of Service so the court knows you received the application.

If you don’t agree with your spouse’s application, you need to file a Response to Divorce. You can do this if you want to:

oppose your spouse’s Application for Divorce, or
fix any mistakes or argue anything written in your spouse’s Application for Divorce. You can do this even if you want the court to grant a divorce.

If you file a Response to Divorce and oppose the divorce, you must attend the hearing.

You can download a copy of this form from the Family law forms page on the Federal Circuit and Family Court of Australia website. 

You will need to include the following information in your response:

your full name and your spouse’s full name
your address for service
the orders that you want
the reasons you:
- want the divorce application to be dismissed, or 
- disagree with the facts in the Application for divorce.

If you need help to file a Response to Divorce, you should get legal advice.

Oppose the application

You can oppose a divorce application if you:

have not been separated for at least 12 months, or
the court does not have jurisdiction to hear the application, for example, you are not legally married or you are not an Australian citizen and you don't ordinarily live in Australia.

To oppose the divorce application:

say ‘Yes’ to question 5 on the Response to Divorce, and
write why you oppose the application at question 6.

If the court finds that point 1. or 2. above are true, it will dismiss or adjourn the application.

To see how to complete this form and an example of a completed form, see:

If you disagree with anything written in the Application for Divorce, but also want a divorce, you can file and serve an Affidavit that explains the facts that you disagree with. You must do this at least seven days before the hearing date. If you file an Affidavit, you should go to court for the hearing.

Case study

Femke and Hendrick separated after 13 years of marriage. They separated five months ago. After their separation, Hendrick moved out of the family home and Femke stayed in the family home with their two children.

Femke has now applied for a divorce. She served him with a copy of her divorce application by giving it to him when she picked up the children from his house.

Hendrick has grounds to file a response opposing Femke’s application because they haven’t met the minimum 12-month separation period. He could also notify the court that Femke didn’t follow the rules for serving a divorce application as Femke should have arranged for someone else, above the age of 18, to serve him.

If Hendrick files a response, he will have to serve Femke within 28 days of her serving him. They will both have to attend the hearing. This will be by telephone or video link, unless they are told to attend court in person.

At the hearing, the court will determine whether Femke and Hendrick meet the criteria to be granted a divorce order. One of these criteria is the 12-month minimum separation period. Another is that Femke has followed the rules for service.

If the court finds that they haven’t been separated for at least 12 months, it will dismiss Femke’s application. The court can also dismiss Femke’s application for not serving Hendrick correctly. If this was the only issue with Femke’s application, the court could have adjourned the case and ordered her to serve him correctly instead.

Even though they can’t apply for a divorce yet, Femke and Hendrick can negotiate a property settlement. They both want to reach an agreement and apply for property settlement consent orders. This is something they should prioritise over getting a divorce as once they are divorced, they will only have one year from the date their divorce order comes into effect to apply for property orders.

Correct errors or dispute facts in the application

To fix any mistakes or dispute the facts in the divorce application:

say ‘No’ to question 5 on the Response to Divorce,
say ‘Yes’ to question 7, and
list the mistakes or facts that you disagree with at question 7.

You can do this even if you want the court to grant a divorce.

To see how to complete this form and an example of a completed form, see:

Only sign your Response to Divorce when your authorised person is there to witness it.

If you file a Response to Divorce and oppose the divorce, you must attend the hearing.

Sign and file your response

Once you have completed your Response to Divorce, an authorised person (Justice of the Peace or lawyer) must witness you signing it.

You can file your Response to Divorce online via the Commonwealth Courts Portal or in person at a court registry.

You must register for the Commonwealth Courts Portal before you can file any documents. For more information on how to do this, see How do I register for the Commonwealth Courts Portal? on the Federal Circuit and Family Court of Australia website.

You don’t have to pay a fee to file your Response to Divorce.

When you file your response, it will be stamped with the court seal and returned to you so that you can serve it on your spouse.

Serve your spouse

You must serve your Response to Divorce on your spouse within:

28 days of being served, if you were served in Australia, or
42 days of being served, if you were served overseas.

You can do this by:

delivering your response to their home address
sending it by registered post
fax
email – if email address provided in address for service
sending it to your spouse’s lawyer – if their lawyer has agreed to accept service.

You don’t need to serve your spouse by hand, but you can if you want to.

After you have served your spouse, you need to prepare for your divorce hearing. You will tell the court about your response and answer the court’s questions.

For more information, see Preparing for the hearing.

If you own any property with your spouse, you might need to negotiate a property settlement.

For more information, see Property settlements.

Serve your spouse overseas

If your spouse is overseas, there is a different process you must follow to serve them with your response. For more information about how to serve your spouse overseas, see Serving a legal document across international borders on the Attorney-General’s Department website.

Checklist - Filing a response

Prepare your Response to Divorce.
Get your signature witnessed by an authorised person (Justice of the Peace or lawyer).
File your completed form online via the Commonwealth Courts Portal or in person at a court registry.
Serve your spouse within 28 days of when you were served, if you were served in Australia, or 42 days of when you were served, if you were served overseas.
Prepare for your divorce hearing.
Go to the hearing.