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Divorce factsheet 1 – Applying for a divorce

This factsheet is the first of five factsheets to help you with your divorce. This factsheet gives you information about how to get started and an overview of the whole divorce process.

Before you start: Can I apply for a divorce in Australia?

Before you can apply for a divorce in Australia, you must meet certain requirements.

1. You or your spouse must be able to answer ‘yes’ to one of the following three questions:

    Q1 Were you born in Australia or have become an Australian citizen by descent?

    Q2 Are you an Australian citizen by grant of Australian citizenship?

    Q3 Are you legally in Australia and have lived here for the last 12 months?

2. You and your spouse must have been separated for more than 12 months and there is no possibility of getting back together.

If you have been living separately under the same roof for more than 12 months, you can still apply for a divorce, but you will need to prepare and file additional documents. For more information, see Factsheet 3 ‘Separation under the same roof’.

3. If you have been married less than two years, you and your spouse must consider marriage counselling before you can apply for a divorce.

You can ask the court permission to apply for a divorce without getting marriage counselling if you have experienced violence or abuse or you are unable to locate your spouse. You will need to prepare and file an affidavit explaining why you are not able to go to marriage counselling.

Getting started

To get a divorce, you will need to file an application for divorce. You can choose to file either a sole application or a joint application.

If you are applying on your own (sole application for divorce)

  • You are the applicant and your spouse is the respondent.
  • Only you need to sign Part G in the presence of an authorised witness
    (eg a Justice of the Peace (JP) or lawyer).
  • You will need to serve your divorce documents on your spouse. For more information, see Factsheet 2 ‘Serving your divorce documents’.
  • If there is a child of the marriage under 18 years of age, you must attend the divorce hearing.

If you and your spouse are applying together (joint application for divorce)

  • Both you and your spouse are joint applicants.
  • Both you and your spouse must sign Part G in the presence of an authorised witness (eg a Justice of the Peace (JP) or lawyer). You do not need to sign at the same time or with the same authorised witness.
  • Neither spouse needs to serve the divorce documents on the other.
  • You do not need to attend the divorce hearing unless you choose to.

Applying for divorce

How do I apply for divorce?

Most people will need to complete and file an Application for Divorce online through the Commonwealth Courts Portal. For detailed instructions see Factsheet 4 ‘How to use the Commonwealth Courts Portal (Divorce)’.

To apply for a divorce online you will need:

  • a computer or laptop (not a phone or tablet)
  • a printer
  • a scanner.

To apply for divorce online, you will need to first scan and save your documents in a place where you can easily find them. When you have finished filling in your application online, you will be prompted to upload the required scanned documents.

If you are unable to use the online system, contact the Family Court or a lawyer.

What documents will I need to provide?

Marriage certificate

If you were married in Australia but do not have a copy of your marriage certificate, contact the Registry of Births, Deaths and Marriages on 137 788 or at www.bdm.nsw.gov.au

If you were married overseas and your marriage certificate is not in English, you must have it translated into English by an authorised translating service. The translator will prepare an affidavit which you will need to scan and file with your marriage certificate.

To find an authorised translator, contact the National Accreditation Authority for Translators and Interpreters (NAATI) on 02 9267 1357 or at www.naati.com.au

Australian citizenship certificate or passport

If you were not born in Australia, you will need a citizenship certificate or visa paperwork which shows you are living legally in Australia and have lived here continuously for more than 12 months.

How do I pay for the divorce?

You will need to pay the court a fee. Courts accept Mastercard and Visa credit or debit card.

You can ask the court to reduce your fee if you:

  • have a government concession card (eg a healthcare card or a pensioner concession card)
  • do not have a concession card, but you will experience financial hardship if you have to pay the court fees.

If you have a concession card:

  1. Answer ‘yes’ to the question at the beginning of the online form about a general reduction of court fees.
  2. Scan and upload both sides of your pension card or healthcare card.

If you are doing a sole application, only you need a concession card.

  1. If you are doing a joint application both you and your spouse must have a concession card.

If the court fees will cause you financial hardship:

  1. Answer ‘yes’ to the question at the beginning of the online form about a reduction of court fees for financial hardship.
  2. When prompted, complete the detailed form about your finances with information about your income, assets, expenses and debts.
  3. If you are doing a joint application, you will both have to complete this form.

Is there any other information I need to provide?

You may need to file an affidavit to provide more information to the court if:

There may be other situations where you will need to file extra documents. If you are not sure what information you need to provide, get legal advice.

Serving your divorce documents

Can I serve the documents myself?

If you are doing a sole application, you must arrange to have the divorce documents served on your spouse. You are not allowed to personally hand the documents to your spouse. If you are doing a joint application, you do not need to serve the divorce documents on your spouse.

For more information, see Factsheet 2 ‘Serving your divorce documents’.

When do the documents have to be served?

If your spouse is in Australia, the documents must be served at least 28 days before the divorce hearing date.

If your spouse is overseas, the documents must be served at least 42 days before the divorce hearing date

Attending your divorce hearing

Do I have to go to court?

You must go to court for the divorce hearing if:

  • you applied for divorce on your own, and
  • there is a child of the marriage under 18 years at the time you applied. This includes children living with you that you and your spouse treated as members of your family (eg foster child or a child from a previous relationship).

If the above does not apply, you may not have to go to court for the divorce hearing.

You will need to go to the divorce hearing if:

  • you are applying for an order for substituted service or dispensation service
  • you have filed an affidavit to explain situations such as separation under the same roof or where you have been married less than two years.

Substituted service means you are unable to serve your spouse in the usual way but can serve them in a different way. Dispensation of service means you are unable to serve your spouse at all.

For more information, see Factsheet 2 ‘Serving your divorce documents’.

If you do not go to the divorce hearing and the court needs more information from you, they will write to you and give you another date to go to court. You must go to court on this date.

What do I need to bring to court?

When you go to the divorce hearing, make sure you bring all your documents with you, including a copy of your application and supporting documents. If there are any problems with your application, you may be able to get help from the Legal Aid duty lawyer at court.

When does the divorce become final?

If the court grants the divorce, it becomes final one month and one day after the hearing date. After that time, you can download the divorce order from the Commonwealth Courts Portal.

For instructions on how to download the divorce order, see Factsheet 5 ‘How to use the Commonwealth Courts Portal’.

Tips for going to court

  • Make sure you arrive at court with plenty of time to spare. It’s a good idea to locate the court before the hearing date. If you don’t arrive on time, your matter may be dealt with in your absence.
  • Dress appropriately, ideally in business attire.
  • Be respectful to the court. When you enter the court, you must bow slightly to the Australian crest located at the front of the court behind the bench.
  • Always turn off your phone before entering the courtroom.
  • Bring a copy of your application so you can refer to it if needed.
  • Bring a pen and paper with you in case you need to take notes.
  • If you need interpretation in another language, bring a translator or a friend who can help translate for you. 
  • If you need help or have questions, see the Legal Aid duty lawyer.

Need help?

1. Legal Aid NSW can give you free help with your divorce. You can:

  • come to a class to get information about your divorce application, or
  • contact a lawyer.

For more information see:

2. LawAccess NSW is a telephone helpline that gives free legal information, referrals to other services and legal advice in some cases. Call 1300 888 529 or visit www.lawaccess.nsw.gov.au

3. The Court can give you information about their forms, the online filing system, and their procedures. Contact their National Enquiry Centre or call 1300 352 000.

See www.federalcircuitcourt.gov.au for more information about divorce, and details about your nearest court registry.

4. Public libraries have computers and scanners. You will need to make an appointment.
See https://www.nswnet.net/libraries

5. Other factsheets in this series

Divorce factsheet 1 – Applying for divorce

Divorce factsheet 2 – Serving your divorce documents

Divorce factsheet 3 – Separation under the same roof

Divorce factsheet 4 – How to use the Commonwealth Courts Portal

Divorce factsheet 5 – Serving divorce documents when your spouse is in prison

This factsheet is intended as a general guide to the law. Do not rely on this information as legal advice. We recommend you talk to a lawyer about your situation. This information is correct at the time of writing; however, it may change. For more information contact LawAccess NSW on 1300 888 529.

© Legal Aid NSW June 2019