Divorce can be a challenging and emotional process, but filing for divorce online can make it a little easier. However, it’s important to remember that the process can still be complex and overwhelming.
To help you with this process, we’ve compiled a list of 9 essential steps to follow when filing for divorce online.
Key takeaways
- Check your eligibility to file for a divorce.
- There are different requirements for joint versus sole applications.
- You must have evidence that you’ve separated, especially if you live under the same roof.
- Find your marriage certificate and have it translated if applicable.
- Before starting your application, ensure you have all relevant documentation on hand.
- Our 9 step guide walks you through the divorce process.
- Sole applicants must satisfy requirements such as serving divorce papers on their ex-spouse.
- The Court may grant substituted service in some circumstances.
- Divorce hearings only require the parties’ attendance in certain circumstances. However, it may be in your best interests to attend.
- Filing fees are payable on submission. You may be eligible for an exemption or fee reduction.
- A three-part test determines if you satisfy the requirements for financial hardship.
- The Legal Aid and Family Court websites have divorce affidavit sample templates for applicants to provide additional information.
How Do I File for Divorce?
Are you eligible?
You and your spouse must have been separated for at least 12 months to be eligible for a divorce in Australia, and:
- Be an Australian citizen;
- Consider Australia to be your permanent home; or
- Have made Australia your primary residence for 12 months before your divorce application.
When married for under two years, you must attend counselling and have a counsellor-provided certificate showing you have satisfied the requirement.
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Download our FREE All In One Divorce Checklist for a more detailed guide on the next steps.
Sole or Joint Divorce Application Form
What does the Family Court of Australia say?
Australia’s Federal Circuit and Family Court has sole jurisdiction over any divorce application. They require parties to follow a strict application process before granting a divorce order. Filing for online divorces has become a standard and convenient method.
You may apply for a divorce through a sole or joint application. There are different obligations between these options, and here, we will be going over the joint application process. If you can, joint applications are usually the best option to make the process as hassle-free as possible. Remember several things before you begin the process to ensure you do it right the first time.
Let’s go through jointly applying for a divorce from start to finish.
Proof of separation
The Family Court must be satisfied that joint applicants have been separated for at least 12 months to consider a divorce application. This can be tricky because there is no certificate you can receive proving your separation began on a specific date.
Instead, you must be able to provide evidence of your separation. This can be done in various ways, including presenting evidence that you:
- Keep separate financial accounts;
- Do not attend social gatherings together;
- Informed family and friends of the separation;
- Informed government departments like Centrelink of the separation.
Separation under one roof
One of the best ways to prove you have separated is to live in separate residences. However, your separation may still be recognised even if you continue living in the same home. This situation is called ‘separation under one roof’.
While filing for divorce, you can demonstrate signs of your separation, even under the same roof. This could include:
- There is no continuing sexual relationship (sleeping in separate bedrooms would support this);
- You don’t share mealtimes with your spouse;
- You maintain different friendship circles.
It may seem strange to continue living together if you intend to divorce. Still, the Court recognises there are reasons to do this. For example, it is common for one partner to be less financially well off and have fewer resources available, making remaining in the home the only viable option.
One final thing before we delve into the divorce application process itself.
Find your marriage certificate
This may seem obvious, but being unable to present your marriage certificate can cause many headaches. A ceremonial certificate isn’t acceptable. However, it can be replaced even if you can’t locate it. Follow this link to the Queensland government’s guide to applying for a replacement: Queensland Government.
Just note that there is a nominal fee required to receive a replacement.
A foreign marriage certificate
When your marriage certificate is in a foreign language, it must be translated by someone certified by the National Accreditation Authority for Translators and Interpreters. Once the translation is complete, the translator must fill out an ‘affidavit translation of marriage certificate’, which should be affirmed by an authorised witness, such as a Justice of the Peace, and attach the following:
- The original marriage certificate;
- The translated certificate;
- Evidence of the translator’s qualifications.
This affidavit should be submitted along with the divorce application.
Now, on to the divorce application.
Divorce Application Process
When you’re ready to submit your divorce case file online, ensuring all the necessary documents are in order is essential. Divorce applications are submitted when getting a divorce; all the documents are necessary to support your filing. Make sure you have organised any additional documents you will need, including:
- Your marriage certificate;
- A certified translation of the certificate, if applicable;
- A citizenship certificate or other proof of your and your spouse’s legal residency in Australia;
- A counselling certificate if the marriage is less than two years old;
- Evidence of your separation, if necessary
9 Simple Steps to Follow When Filing for Divorce Online
Here’s the process, step by step:
- Register an account on the Commonwealth Courts portal;
- Start a new file and select an application for filing for divorce online;
- Make sure the information provided is correct at each step before saving and moving on;
- Select print preview to review the completed application;
- Upload any additional documents necessary to support the application;
- Choose lock and continue once you are sure the application has been filled out accurately;
- Print the application;
- Joint applicants must both sign the affidavit for divorce sample for eFiling Application
- The signatures should be witnessed by a Justice of the Peace
- Joint applicants may sign separate Affidavits if needed
- Upload the signed and witnessed affidavit;
- Pay the filing fee and apply.
Joint applicants don’t need to attend a court hearing unless they indicate in their application that they wish to.
Once you apply, the family court will review it. If the application is successful, divorce orders take effect after one month and one day.
Sole Application for Divorce
The divorce process is similar for sole applicants, but they also have unique considerations. A sole applicant doesn’t require a signature from their former partner. However, they must serve the divorce papers on them before submitting the application. This allows the other party to respond to the application.
Serving court documents
When filing for divorce serving documents on your ex-spouse is critical before the final submission. You are not permitted to serve the documents yourself. You must use a third party who’s over 18. The papers must also be served at least 28 days before the court hearing or 42 days prior if your spouse is overseas.
The service documents that the other spouse must receive are the following:
- A sealed copy of the Application for Divorce with the Notice for Application for Divorce attached;
- Affidavit form for eFiling;
- Marriage, Families and Separation brochure;
- An Acknowledge of Service (Divorce);
- Any other document relevant to your divorce application;
- Directions for your former spouse regarding what to sign and return to you.
Substituted service
Substituted service serves legal documents on a party when the usual service methods are unsuccessful. In a divorce proceeding, substituted service may be used when one spouse cannot personally serve the other spouse with the divorce papers. This may be due to various reasons, such as the other spouse avoiding service, being absent, or their unknown whereabouts.
Here’s a breakdown of what substituted service entails:
- Attempted Personal Service: Before substituting service, the serving party must demonstrate that they made reasonable attempts to serve the other party. This might involve multiple visits to the person’s home or workplace.
- Court Permission: If personal service is unsuccessful, the serving party can petition the Court for permission to use substituted service. The Court will require evidence of the attempts made at personal service.
- Methods of Substituted Service: Depending on the jurisdiction, substituted service can take various forms, including:
- Service by Mail: Sending the documents to the person’s last known address.
- Service by Publication: Publishing a notice in a newspaper circulated in the area where the person is believed to be.
- Service on a third party: Leaving the documents with someone of suitable age and discretion who the Court believes will bring the documents to the spouse’s attention.
- Service through Electronic Means: In some jurisdictions, service might be allowed through email or other electronic means, especially if it’s believed the authorised person will receive it that way.
Dispensation of service
The Court may waive a party’s requirement to serve divorce documents in exceptional circumstances. Before granting dispensation of service, the Court must believe you have made all reasonable attempts to contact the other party. The Court may dispense with service with or without further conditions.
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Divorce hearing
All divorce proceedings have a hearing date set for them. Divorce hearings are conducted electronically. Parties only need to attend the hearing under particular circumstances.
- Sole applicants must appear at the hearing if they have a child of the marriage that’s under 18 when they filed for divorce;
- A joint applicant requested to attend the hearing;
- One party has contested the divorce being heard in the other party’s absence;
- The applicant is applying for substituted service or dispensation of service unless advised otherwise by the Court;
- The respondent filed a Response to Divorce opposing the divorce application.
While the parties don’t need to attend a hearing in many circumstances, there are reasons it may be a good idea. Sometimes the parties must provide additional information through an affidavit. These circumstances include the following:
- Giving evidence to demonstrate separation under one roof;
- You were married for less than two years;
- Your circumstances have changed since you initially filed for divorce.
Court filing fee
You must pay the court fees before the court will accept divorce paperwork. The total cost is $990. However, you may be eligible for a reduced price of $330 if you have a valid government concession card, such as a health care card or pensioner concession card. If you are applying jointly, both parties must be eligible.
Applicants receiving Austudy, youth allowance, or ABSTUDY payments may also receive a reduced fee for anyone who can prove financial hardship. The government uses a three-part test to ascertain if the financial hardship concession applies.
Financial hardship
Parties suffering from financial difficulties may have fees on specific court processes waived or reduced. The three-part test to determine financial hardship is based on the applicant’s ability to pay the total cost without suffering financial hardship. The three-part test includes the following parts:
Income test
This assesses the applicant’s gross income against a threshold. Income sources may include:
- Employment income;
- Employer provided fringe benefits;
- Foreign income;
- Rental income;
- Paid parental leave;
- Superannuation payments;
- Income from shares and other investments.
If the applicant’s income exceeds the threshold, they may qualify for a fee reduction. The threshold varies by the applicant’s number of dependents.
Assets test
This evaluates the total value of the applicant’s cash and convertible shares or bonds. If the total value is less than five times the cost of the fee, the applicant will satisfy this test. For instance, a party may apply for consent orders, attracting a fee of $195. In this case, the party’s total liquid assets cannot exceed $975.
This test ensures that individuals with significant assets, even with a low income, do not unduly benefit.
Daily living expenses and liabilities test
This test determines your surplus income after accounting for your daily expenses and reasonable fortnightly liabilities. Your eligible expenses and liabilities are deducted from your fortnightly income after tax to determine your surplus income.
Affidavit Templates in Queensland (QLD)
If the Court requires additional information, you may need to include a sworn affidavit with your application. Any court document or written statement provided to the court must adhere to strict formal standards to be valid.
The links below provide templates for various court forms that can guide how court documents should be laid out with appropriate wording.
Legal Aid – Sample Forms
Courts – Sample Forms
Conclusion
While it is possible to apply for a divorce as a sole applicant, a joint application generally makes the process much easier. While filing for divorce online is streamlined to make divorce applications as simple as possible, getting your submission airtight is vital to avoid later administrative headaches.
Getting legal help from an experienced family lawyer can distinguish between a simple submission process and a drawn-out exercise in correcting easily avoidable mistakes.
Seek legal advice from our divorce lawyers to make what is already a difficult time as pain-free as possible.
If you need help with family law matters, contact us for a free discovery call.
The above information is intended to be general advice only and is not a substitute for personalised advice. Because it does not consider your individual circumstances, it is not intended to be relied upon and any loss or damage arising from any such reliance is disclaimed. Any financial or legal decisions should only occur after you have received tailored advice from a legal or financial professional.
