Getting a divorce in Australia is now mostly done online. You fill in the application, upload your documents and pay the fee through a court portal. Many people do it without a lawyer. Even so, the rules are strict and small mistakes can slow things down.

This guide explains how an online divorce application works under the Family Law Act. It covers who can apply, what you need and what happens after you file. It also points out where Western Australia does things differently.

What a divorce does and does not cover

A divorce order formally ends a marriage. It does not decide who keeps the house, how money is split or where the children live. The Federal Circuit and Family Court of Australia says these matters need a separate application. Many separated couples sort out property and parenting first and apply for the divorce later.

If you have children, the parenting side often matters far more than the divorce itself. Our article on sole parental responsibility for divorced parents explains one of the terms you may come across. Decisions about children are made in their best interests. That is a separate process from the divorce order.

Who can apply for a divorce

At least one of you must have a real connection to Australia. According to the court, that means being an Australian citizen by birth, descent or grant. It can also mean being lawfully present here and having lived in Australia for at least 12 months. People who live overseas still need to give an Australian address for service.

You also need to show the marriage has broken down. The form asks whether there is any reasonable likelihood you will get back together. Your honest answer needs to be that there is not. The separation also needs to have lasted long enough, as the next section explains.

The 12 month separation rule

You must have been separated for 12 months and one day or longer before you file. The court gives a simple example on its divorce application page. If you separated on 7 November 2020, you could apply from 8 November 2021. Filing too early means the application will not succeed.

Separated but living under one roof

Some couples separate but keep living in the same home for a while. This is allowed, but you need extra evidence. If you lived together at any point in the 12 months before filing, you must file an affidavit showing how the marriage changed. A third person, such as a friend or relative, should also file an affidavit backing up your account.

Writing a clear affidavit takes some care. Our guide on how to write an affidavit during divorce proceedings goes through the basics. Keep it factual and stick to what you saw and did. The court relies on this evidence to accept that you really separated.

Married for less than two years

If you have been married for less than two years, there is an extra step. Legal Aid Tasmania explains that you and your spouse must first consider counselling. The court may excuse this in some cases, such as where there has been violence or abuse. You would need to explain why counselling is not possible in an affidavit, as set out on the Legal Aid Tasmania divorce page.

Applying alone or together

You can file a sole application or a joint application. In a sole application you are the applicant and only you sign. You must then serve the papers on your spouse. In a joint application you both sign as joint applicants and no service is needed.

A joint application is often simpler if you are both on reasonable terms. A sole application suits people whose spouse will not cooperate or cannot be found. If you cannot locate your spouse, the court allows you to apply for a service order or substituted service. These applications usually mean you need to attend the hearing.

How the online application works

Outside Western Australia, divorce applications are filed through the Commonwealth Courts Portal. You need to register an account first. The court also says you will need a scanner, a printer and a Visa or Mastercard. Applications stay on the system for 90 days and are then deleted automatically, so it pays to keep moving.

Before you start, it helps to gather your paperwork together. Having it ready saves time once you are logged in. These are the main things you are likely to need:

• your marriage certificate, or an affidavit explaining why you cannot get it
• a certified English translation if the certificate is in another language
• citizenship, passport or visa papers if you were not born in Australia
• details of any children under 18 and their current care arrangements
• a card to pay the filing fee

The eFiling affidavit must be signed in front of a lawyer or a Justice of the Peace. In a joint application, both of you sign it. Once you submit, court staff check the documents and contact you if something needs fixing.

The filing fee

At the time of writing, the court lists a full fee of $1,170. A reduced fee of $390 applies to people who are eligible. In a joint application, both of you must qualify or the full fee applies. You can also ask for a reduction on hardship grounds, and fees do change, so check the current amount before you file.

Serving the application

If you file alone, you must serve the application and related documents on your spouse. The court requires you to include its brochure on marriage, families and separation. Legal Aid Tasmania notes there are strict requirements about how service is done. If service is not done properly, the hearing may not go ahead.

The court date and hearing

Every divorce is listed for a court date, even when no one needs to attend. Hearings are held electronically. You must attend if you said in the application that you wish to. You must also attend if your spouse files a response opposing the divorce or if you applied for substituted service. Where there are children under 18, your spouse can ask to attend and then you need to be there as well.

Where there are children under 18, part of the form asks about their care. You set out where they live, their schooling, health, contact with each parent and financial support. The court wants to see that proper arrangements are in place. It is not deciding parenting orders at this stage.

When the divorce becomes final

A divorce takes effect one month and one day after the order is made. The court can shorten this in special cases. You can download the order from the portal the next working day after it becomes final. That digital order is the official record of your divorce.

Once the divorce is final, many people review their will and other estate documents. It makes sense to check those documents still reflect your wishes, and estate rules vary between states and territories. Our post on using an estate planning specialist looks at why some people get help with this. Ask a lawyer whether any time limits apply to property or maintenance claims.

Divorce in Western Australia

Western Australia has its own Family Court for divorce applications. People there apply through the eCourts Portal of Western Australia rather than the Commonwealth portal. Sole applicants still need to serve their spouse and lodge an affidavit of service. Joint applicants do not need to serve the application.

Getting advice before you file

You do not need a lawyer to get a divorce, as Legal Aid Tasmania points out. Advice is still worth getting if you lived under one roof, cannot find your spouse or have children. A short consultation can spot problems before they cost you time. Legal aid offices and community legal centres can also help.

Online legal help now covers many areas, from family matters to your rights when arrested by police. Online information is a good place to start, but it cannot weigh up your own facts. A lawyer can tell you how the rules apply to you. Processes and fees also change, so check the court website before you file.

Frequently asked questions

Can I apply for a divorce if my spouse does not agree?

Yes, you can file a sole application. Your spouse can file a response opposing the divorce. If they do and you do not attend the hearing, the court may dismiss your application.

How long after separating can I apply?

You need to have been separated for 12 months and one day or longer. Time spent separated under one roof can count. You will need extra affidavits to prove it.

Does a divorce settle property and children’s arrangements?

No, a divorce only ends the marriage. Property, money and parenting arrangements need separate agreements or court orders. Get advice about any time limits that apply to you.

Do I need to go to court?

Not always, as many divorces are granted without anyone attending. You must attend in some cases, such as when your spouse opposes the divorce. Hearings are held electronically.

This article is general information about Australian family law only and is not legal advice. Laws, fees and court processes differ between states and territories and change over time. Speak with a qualified family lawyer about your own situation.