Divorce, according to Australian law, means simply the dissolution of marriage.
In this context, divorce does not cover other issues that may arise upon separation including:
These other matters are often resolved before you get divorced. However, apart from making proper arrangements for your children, you don't have to resolve them in order to get a divorce.
As a general rule, you must have been separated from your spouse for at least 12 months before you can apply for a divorce.
You can apply for divorce on your own application (sole application) or jointly with your spouse (joint application).
Lawyers are not essential, but you will need time to go to the Family Court and prepare the necessary documents. Application forms are available from the Family Court located at 150 Terrace Road, Perth or phone 9224 8222.
Many people find it more convenient to have a lawyer do the work.
We offer a fixed price service for straightforward divorces.
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What we offer
We will:
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prepare your joint divorce application in accordance with your instructions;
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arrange for you and your spouse to sign the application;
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file the application at the Court; and
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send you a copy of the decree absolute of divorce when we receive it from the Court.
The above includes a reasonable allowance for correspondence and telephone calls. |
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Fixed price
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Things you should know
What to bring to the consultation
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Photographic identity document (eg passport or drivers’ licence)
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Photocopies of any relevant documents (that you can leave with us) including print-outs of emails etc organised in chronological order – earliest date first.
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Your original marriage certificate
Tips on how to get the best value out of our services
Visit doing business with us
How to find us
Initial consultations are held at our offices during business hours. Contact us for our street address, location map and details of parking arrangements. If necessary, we offer consultations after hours, at your premises or by telephone - additional charges apply.
Before the consultation
We will ask you to complete a capture sheet with your personal and business contact details and similar details for other parties involved in the matter. We need this information to maintain the integrity of our records protect you and the public generally against the possibility of fraud and to ensure that we do not have a conflict of interest that would preclude us from acting for you.
Additional services
The following services are not included in the fixed-price; however, if you require them, we welcome the opportunity to give you an estimate of charges at the short consultation:
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a sole application;
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answering any requests for further information issued by the Court;
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if your marriage certificate is not in English, obtaining (or assisting you to obtain) a translation and an affidavit of the translator;
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preparing any evidence (other than the application itself) to prove your citizenship, residence or domicile;
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if it is less than 2 years since you married, assisting you to obtain a counselling certificate;
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any application to fast-track the granting of the decree absolute of divorce..
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Make an appointment
Arrange an appointment now:
- use our online booking request
- or telephone 9220 4432 (1800 018 845 freecall from regional Western Australia) during business hours. If you're not booking online, you could save time at the consultation by completing our Initial Consultation Form (PDF document) and bringing it with you to the consultation.
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Key parts of a divorce application
Citizenship
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You can only apply to the Court for a divorce if you or your spouse:
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Separation
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The only ground for divorce is the irretrievable breakdown of your marriage. You must satisfy the Court that you have been separated from your spouse for at least 12 months immediately prior to your divorce application. Establishing adultery, cruelty or desertion is no longer necessary. The Court doesn't decide who caused the breakdown of your marriage, it will only consider whether the marriage has broken down.
There is no such thing as a legal separation and you don't have to register your separation in order to get a divorce.
You can be regarded as separated whilst remaining in the same house as your spouse if you can show that you and your spouse are living separate lives in every way. Single roof separation can be difficult to prove and may therefore complicate your application.
You can resume your relationship once for up to three months during the separation period but you must still have been separated for 12 months in total before you can be divorced.
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Counselling certificate
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If you've been married for less than two years you will generally have to file a certificate of counselling with your divorce application which you can obtain by seeing an approved marriage counsellor along with your spouse. In special circumstances the Court may accept your divorce application without a certificate of counselling. |
Arrangements for children
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The Court won't grant your divorce unless it is satisfied that proper arrangements have been made for all children who were treated by you and your spouse as a child of your family at the separation date and who are under 18 at the date of your application. You should include details of the arrangements for your children - including information about their place of residence (bedrooms and other facilities), education, supervision, health and so on - in your divorce application. You should also mention any foreseeable changes to these arrangements.
If the Court isn't satisfied with the information about any child not living with you it may require evidence from the child's current custodian (usually you or your spouse). The custodian can swear an affidavit or give oral evidence to the Court.
If the custodian refuses to cooperate you may need to serve him/her with a subpoena compelling her/him to come to the Court and give evidence about the arrangements for the child(ren).
The Court may grant your divorce application even if it is not satisfied about the arrangements for the children but it exercises this discretion only in rare circumstances.
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Marriage certificate
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If you don't have your original marriage certificate you can file a certified copy. If you were married in Australia you can get a certified copy from the Registrar General's Office in the state where you were married. Otherwise, you'll have to contact the relevant authority in the country in which you were married. |
Court filing fee
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The Court charges a fee when you file a divorce application. You can apply to the Court for remission of this fee if you are the holder of certain pensioner, health or senior's cards or if you can show that payment will cause you hardship. |
Service
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You can apply for divorce on your own behalf or jointly with your spouse. Joint divorce applications are signed by both parties and don't have to be served on your spouse.
If you make a sole application, the court will want to be satisfied that your spouse has received the service copy of the application and therefore knows about the hearing date. You must get a process server to serve the service copy (and the Court's pamphlet about marriage breakdown and separation) personally on your spouse so that he or she knows about the application and the hearing date. You can't serve these documents yourself.
Your spouse must be served at least 28 days before the hearing if s/he lives in Australia or 42 days if s/he lives overseas.
When serving your divorce application the process server must ask your spouse to sign an acknowledgment of service document. If your spouse cooperates by signing the acknowledgment of service the process server can then swear an affidavit of service confirming that the application was served and annexing the original of the signed acknowledgment of service.
You must then swear an affidavit annexing a copy of the acknowledgment of service, identifying your spouse's signature and explaining how you are able to do so. Of course, you must be able to recognise the signature in order to swear this affidavit.
The acknowledgment of service, the affidavit of service and your affidavit verifying your spouse's signature must all be in a form prescribed by the Family Court Rules. You must file both affidavits at the Family Court before the hearing.
If you spouse refuses to sign the acknowledgment of service the process server can use a photograph or other means to identify your spouse. The process server then swears an affidavit stating that your spouse declined to sign the acknowledgment and explaining the basis of identification. If a photograph was used it should be annexed to the affidavit.
Process Servers
Any adult can act as a process server or you can obtain the names of professional process servers from the Yellow Pages telephone directory. Many professional process servers also prepare the affidavit of service and the acknowledgment of service. It is your responsibility to ensure that the documents comply with the rules.
Service by post
Provided that your spouse cooperates by signing and returning to you the acknowledgment of service you can serve your divorce application by post. You then swear and file an affidavit of service as described above.
If you can't find your spouse
If you've made reasonable efforts to locate your spouse without success you can apply for an order for substituted service or dispensation of service. You may be allowed to serve the application by advertising in a newspaper or posting it to a likely address instead of service in person.
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The court hearing
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Your divorce application will be considered by a magistrate at the Family Court on the hearing date. If you have a lawyer you don't have to attend the hearing although you are entitled to do so. Where there are no children under 18 years you can request the Court to deal with your application in your absence. Otherwise you must attend the hearing. If your application is a joint application your spouse (or his or her solicitor) must also attend.
If the papers are in order and your spouse doesn't oppose the application the magistrate will grant you a decree nisi and order that your divorce become absolute after one month. You can ask for this period to be reduced in special circumstances.
If your spouse opposes your application, the magistrate may re-list the matter for hearing before a judge. Both parties then have to file affidavits setting out their respective positions. Such hearings are rare.
You can't remarry until your divorce becomes absolute - usually one month after you obtain a decree nisi.
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If you have previously made a Will, chances are you've left everything to your partner. If you don't have a Will the law assumes that he or she is your major beneficiary until you are divorced. We offer a fixed-price service for Wills.