Legal Steps to Take When Filing for Divorce

Let's face it, divorce can be overwhelming.

You may be thinking the entire process sounds complicated, expensive, and emotionally taxing. But wait…

It doesn't have to be this way. If you have a reliable and easy-to-follow roadmap of the legal steps to file for divorce in Australia, you'll find the process can be quick and relatively painless. In fact, in 2024 a total of 47,216 divorces were granted in Australia alone. That's thousands of people every year who start and finish this process.

There's more good news: Australia's modern no-fault divorce system means you don't need to try and prove wrongdoing to get a divorce.

You just need to know the right legal steps.

Here's what you'll learn:

• Understanding Australia's Divorce Requirements

• Documents You'll Need Before You File

• Step-by-Step Filing Process

• How to Serve Divorce Papers

• The Aftermath of Filing for Divorce

Understanding Australia's Divorce Requirements

Here's the deal: Australia has one of the easiest and fairest divorce systems in the world.

Under our family law, there's only one ground for divorce: the irretrievable breakdown of your marriage. And to prove that, you need to have been separated for at least 12 months with no reasonable likelihood of reconciliation.

You don't have to try and prove fault. The court doesn't care why the marriage broke down - it can be for any reason or no reason at all. And the details of who did what wrong in the marriage are largely irrelevant. They only need to know the marriage is really over.

But (there's always a but) you do have to meet specific eligibility requirements before you can file a divorce application. Either you or your spouse must be an Australian citizen, consider Australia home and intend to live here indefinitely, and ordinarily live here and have done so for at least 12 months before you file.

If you were married overseas, that's okay too. You can still get divorced in Australia if you meet these basic residency requirements.

But if you or your spouse are from overseas or have a complex family law situation with children and property to sort out, having access to experienced professionals who know their way around the courts is an invaluable help to sorting it all out. Places like Family Law Partners Central Coast are full of people who can make the entire divorce process much more manageable and ensure you meet all the legal requirements correctly.

Documents You Need Before You File

Want the secret to a smooth divorce application process?

Have all your documents in order before you start. Incomplete paperwork is the biggest cause of costly delays and hold-ups in the process.

Here's the bare minimum you absolutely must have:

Your original marriage certificate (or certified copy of that). If not in English, you'll need a certified translation. If you can't find your marriage certificate, you'll need to explain this to the court and provide alternative proof of marriage.

For applications involving children under 18, the court also needs to see:

• Details of children's living arrangements

• School and care information

• Arrangements to maintain contact with both parents

• Details of financial support arrangements

Oh, and a little known fact most people forget:

If your marriage has lasted less than two years, you must attend counselling and file a counselling certificate. This is mandatory, with no exceptions. You cannot get around it.

Step-By-Step Filing Process

Ready to file? Here's exactly how to do it:

Step 1: Decide on Application Type

There are two types of divorce application you can make:

• Joint application by both spouses (cheaper and faster)

• Sole application by one spouse (must serve papers on the other spouse)

Joint applications are becoming much more common nowadays. In fact, over 50% of divorce applications are now joint applications because it's easier and neither party need to attend court.

Step 2: Register with the Commonwealth Courts Portal

All divorce paperwork is now done online. You'll need to create an account and have all your documents scanned and ready to upload.

Step 3: Complete the Application

The form itself is simple and straightforward, but you need to be thorough. The court will not grant your application if anything is missing or vague.

Step 4: Pay the Filing Fee

The current filing fee is $1060 (or $350 if you qualify for a fee reduction due to financial hardship). This is a huge jump from previous years, so budget for it.

Step 5: Submit Supporting Documents

Upload everything at this point. The court won't process your application until they have all the required supporting documents.

How to Serve Divorce Papers

This step is only necessary if you made a sole application.

You must serve divorce papers on your spouse at least 28 days before any court hearing (42 days if they are overseas). You cannot serve the papers yourself.

The two most common ways of serving are:

• Service by Post is a sealed copy of your application, the acknowledgment of service form, a letter asking for signature and return, and a prepaid return envelope

• Service by Hand is when you arrange for a third person over 18 to personally hand the papers to your spouse - friend, family member, or professional process server

If you cannot locate your spouse, the court can allow substituted service (email, social media, or third party) or dispense with service entirely in certain circumstances. 

What Happens After You File for Divorce

Patience becomes a virtue at this point.

The whole process from start to finish takes several months. Don't expect the divorce to be granted at the first hearing.

For a joint application, neither spouse generally needs to attend court. The court will review the paperwork and grant the divorce if all is in order.

For a sole application, you will likely need a short court hearing if you have children under 18.

The final step: The divorce becomes final one month and one day after the court order. This is when it officially ends and you can legally remarry.

A critical point most people miss: Divorce only ends the marriage. You have 12 months from the divorce becoming final to apply for property orders (unless you have a financial agreement) or you will need to apply to the court for leave to apply out of time.

Key Considerations & Getting Help

Let's be real about what you're up against.

The median duration of marriages ending in divorce is now 13.2 years and people often underestimate the difficulties involved.

Here's what you need to plan for:

• The true cost. Filing is just the first step, and legal advice, document preparation services, or mediation for property matters will add significant expense.

• Realistic timelines. The entire process from separation to final order takes 13+ months on average, often closer to 18 months if you account for processing times.

• Arrangements for children. The court will scrutinize proposals for kids under 18 closely. Be prepared to be specific.

• Professional help. While self-managed divorces with no children or property issues are possible, family lawyers provide assistance in complex cases, paper preparation accuracy, and document service. Lawyers are worthwhile when you have significant assets, children, or an uncommunicative spouse.

Wrapping Up

Filing for divorce in Australia is a clear legal process thousands of people successfully navigate every year. By understanding the requirements, preparing well, and following each step methodically, the process can be relatively quick and painless.

Don't forget the key points:

• 12 months separation is required

• Documents need to be ready to go before you file

• Choose joint or sole applications strategically

• Serve papers correctly if filing alone

• Be prepared to also resolve property and parenting matters separately

Divorce might seem daunting at first, but with a good roadmap and understanding of the legal steps you can move through it all efficiently and start your next chapter in life. Most importantly, take your time and do it right the first time - this will save you money and stress later.

And while you can do it all yourself, having the help of professional and experienced people is a great help if you have a complex situation or are dealing with high emotions.

You can also schedule a consultation with the experienced family lawyers at Family Law Partners Central Coast for assistance with any divorce related questions you may have.