Getting a divorce can be an emotional and overwhelming experience. To help take the guesswork out of the divorce process, we’ve put together this step by step guide to help educate you on how to get a divorce if you live in NSW, Australia.
Step 1- check your eligible
To be eligible for divorce in NSW, you must satisfy certain eligibility requirements. Before making your divorce application you will need to prove to the courts that:
- You are currently legally married
- There has been an irretrievable breakdown of the relationship
- You’ve been separated from your partner for longer than 12 months
- One of you is an Australian citizen, permanent resident or has been living in Australia for at least 12 months
- If you have been married for less than two years you will need to participate in counselling to ensure that there’s no chance of reconciliation.
In order to prove these things to the courts you will need to provide documentation. Documentation will include your marriage certificate or equivalent marriage documentation, as well as a certificate of your citizenship or a photocopy of your visa if you weren’t born in Australia.
Step 2 – Decide if your going to be filing a sole or joint application
Before you start the divorce process, you’ll need to decide whether to file a sole or joint application. It’s important to understand the differences between a sole and joint application, as there are different obligations for each method.
Only you will be required to sign the Affidavit for eFiling Application
Your ex husband or wife does not need to sign the Affidavit, however you will need to serve the application for divorce on them.
One of you will fill out the application and provide a copy to the other person for them to sign.
Both of you must sign the Affidavit for eFiling Application.
Step 3 – Complete an application for divorce form
In order to get a divorce you will need to fill out the application form. Applications can be found in the divorce service kit located on the Family Courts Australia website here. The application form must be signed and witnessed by a solicitor or Justice of the Peace.
If you need help to complete the application you should obtain legal advice from family law experts such as MDV Family Lawyers. We’ll be able to help you navigate the process, explain how the law applies in your case, provide legal advice and appear at your divorce hearing to ensure a final divorce order is made.
Step 4 – File your application
Applications for divorce should be completed and filed online using the Commonwealth Courts Portal. In order to do this you’ll need to to have digital copies of your paperwork including your marriage certificate and any other required documents, a printer and a visa or mastercard to pay the application fee.
As of July 2020, the Application Fee for Divorce in NSW is $930.
There is a reduced rate of $310 available for people who hold a government concession card, receive certain government payments, are receiving legal aid or would be put into financial hardship by paying the fee. For more information regarding the cost of divorce and the requirements to apply for the application fee, please see our other article here.
Step 5 – Receive your court hearing date
Once the application has been completed and the fee has been paid, a sealed copy of the application form containing the file number and hearing date will be available from the portal.
Step 6 – sign & upload an Affidavit for eFiling Application (Divorce)
After the application has been processed, an Affidavit for eFiling Application (Divorce) will be available to download from the portal which must be sworn or affirmed before a lawyer or Justice of the peace and then uploaded as a scanned image into the portal.
Step 7 – Serve the application on your spouse (if filing individually)
Once the scanned image of the affidavit has been uploaded, a sealed copy of the affidavit and a sealed cover sheet will be available to download.
The sealed documents will then need to be served to your ex husband or wife in accordance with the Federal Circuit Court Rules. These rules include serving the other person the papers within a certain time period before the court date.
For more information regarding this and other rules of service please refer to the Divorce Service Kit.
Step 8 – File the service documents (if filing individually)
Once you’ve served the papers on your ex spouse, you will need to file an affidavit of service via the portal.
Step 9 – The court hearing
There will be a hearing for your application of divorce. By now you should already know your hearing date as it would have been available as soon as you filed your application. Whether you need to attend your court hearing will depend on the following:
Individual application for divorce:
Court attendance is not required if there are no children of the marriage.
Court attendance is required if there are children under the age of 18 years.
Joint application for divorce:
Court attendance is only required if you selected to attend at question 2(A)
Step 10 – Certificate of Divorce
At the hearing, the court will grant a divorce order provided that they are satisfied that there is grounds for divorce and that the correct process has been followed.
If you fail to follow the correct process and serve your spouse, the court date may be moved to give you time to do such things. Once the divorce order has been granted, the courts make it final one month and one day after the court hearing date.
During the time between granting the divorce order and making it final you cannot get re-married, you must wait until the divorce order has been finalised.
After divorce – Settlement Proceedings
It’s important to understand that your divorce is only the end of your marriage in the eyes of the law. In order to organise who gets what, decide on custody arrangements, draw up parenting orders and settle any assets/debts, you will need to go through settlement proceedings at a later date.
It is important you remember that you only have 12 months from the date of your Final Divorce Order is granted to divide up your property and settle any assets/debts.
It is highly recommended that you have a family law expert help you navigate the settlement process after divorce. Specialising in family law, Burbank & Brown are well equipped to help you with your divorce. We’re here to support you in achieving a favourable resolution, need help with your divorce? Get in touch with Burbank & Brown.