In Australia, obtaining a divorce is a legal process that changes your marital status, but it doesn’t automatically address issues like property settlement, parenting arrangements, child support, or spousal maintenance. Applying for a divorce is solely to change your legal status, which, once finalised, will also trigger the time limit for property settlement to occur.
The Federal Circuit and Family Court of Australia oversees divorces, and in Queensland, the process is straightforward, thanks to the no-fault divorce system. This means no one needs to prove who was at fault – only that the relationship has experienced an irretrievable breakdown (which means there is no chance of getting back together). Once you make an application, a court date will be set, and from here, your divorce will be finalised.
Here are the steps you will need to take to get a divorce in QLD:
Step 1: Meet The Criteria To Apply For A Divorce
Before lodging an application for divorce in Australia, you must meet certain criteria under the Family Law Act 1975:
- You’ve been separated for at least 12 months (this can include Separation Under One Roof).
- You’ve been married for more than two years. If married for less than two years, a counselling certificate is required unless domestic violence is a factor.
- Your marriage must have occurred in Australia or be recognised by Australian law.
- You must have made proper arrangements for any children of the marriage under 18 years of age.
- You must provide a copy of your marriage certificate and other relevant documents.
Special Circumstances
There are some factors that can require addressing, aside from a standard divorce application. You may need to submit extra documents or affidavits if you don’t meet the above criteria. A divorce lawyer can assist you with this if you are having trouble meeting the requirements, some of which include:
Living Separated Under One Roof
When separating under one roof, you must provide extra evidence for divorce proceedings. This includes proving that despite living together, you led separate lives, such as sleeping, managing finances, and socialising independently. Statements from friends or family may also be required to support your separation claim.
If You Were Not Married in Australia or Not Living in Australia
If you were married outside of Australia or are not currently living in Australia, you may still apply for a divorce in Queensland if you meet certain conditions:
- You or your spouse are an Australian citizen.
- You regard Australia as your permanent home and intend to live in Australia indefinitely.
- You ordinarily live in Australia and have done so for at least 12 months before filing for divorce.
If these conditions are met, the Court will recognise your marriage, and you can proceed with the divorce process.
If You Have Been Married for Less Than Two Years
If you’ve been married for less than two years, you cannot apply for divorce without attending counselling to discuss the possibility of reconciliation. You will need a counselling certificate confirming that you have tried to resolve your issues before the Court will process your application.
In special circumstances, such as cases of family violence, this requirement may be waived, and you can apply directly for divorce.
Step 2: Gather Documentation
There is a lot of paperwork involved in finalising a marriage, and the divorce process requires various identification and other necessary documents to be lodged with your application.
Before lodging your divorce application, ensure you have the following:
- Your marriage certificate: If you’ve misplaced your original certificate, you can request a copy from the Registry of Births, Deaths, and Marriages. It needs to be your official marriage certificate, not a commemorative copy. If you don’t have this available, the cost to re-order will be $54.40 (as at November 2024), with an additional $32.20 (as at November 2024) payable for an urgent application. You will need to provide a copy of your marriage certificate that has been certified by a Justice of the Peace.
- You will also need to have personal identification, which will need to also need to be supplied as a certified copy.
Step 3: Lodge an Application
You can lodge your application for divorce online after the 12-month separation period has been met, with the help of your family lawyer for a small fee, or you can use the ‘do-it-yourself’ Divorce service kit.
Either way you choose to go, you can file your application for divorce in one of two ways:
- As a sole application: Only one spouse applies for the divorce. In this case, you will need to serve the other party with the divorce papers using service documents. You may also need to apply for a Dispensation of Service if you cannot locate your spouse.
- As a joint application: This application is filed by both parties as joint applicants, which avoids the need for service documents.
Once you have the necessary court documents ready, applications are lodged through the Commonwealth Courts Portal, to begin court processes. The Federal Circuit and Family Court of Australia will set a hearing date if required, usually 4-10 weeks after your application is lodged.
Does the Application, Divorce Documents and ID Need to Be Copied and Witnessed by a JP?
Your signature on the divorce application will need to be witnessed by a Solicitor, Justice of the Peace (JP) or another qualified witness.
When filing a divorce application, your identity documents (such as your marriage certificate and supporting ID) may need to be certified by a Solicitor, Justice of the Peace (JP) or another qualified witness, particularly for sole applications. This ensures the authenticity of the documents submitted to the Family Court.
How Do I Find a JP?
You can find a Justice of the Peace in Queensland through:
- Queensland Government JP Website: The site provides a searchable database to locate JPs by postcode or suburb.
- Community Centres: Many libraries, shopping centres, and local council offices have JPs available during certain hours.
- Your Local Pharmacy or Post Office: Many pharmacies and post offices have JPs on-site, especially in larger areas.
Ensure that the JP witnesses your original documents and signs the copies as certified.
Service of Paperwork
If you file a sole application, you must serve your spouse with the divorce papers. This can be done in person by a third party, such as a process server or a trusted friend, but not by you. You can serve your spouse by post but only if you are confident that they will sign and return the Acknowledgement of Service for filing.
If you cannot locate your spouse, you can apply for a Dispensation of Service through the Court.
After serving the documents by post, your spouse must acknowledge receipt by signing an Acknowledgement of Service form and returning this to you for filing with the Court.
After serving the documents by hand, the server must complete the Affidavit of service by hand and attach the original signed Acknowledgment of Service. If the server does not know the respondent, you must complete the Affidavit proving signature and attach a copy of the Acknowledgment of Service. If your spouse does not sign the Acknowledgment of Service the server should complete the Affidavit of Service and note the circumstances of service and non-signing.
If your spouse has a solicitor you can serve the solicitor and simplify the above process provided that the solicitor has confirmed in writing that they will accept service of the divorce application.
The Court will not proceed with the divorce until this step is completed (ie that there is proof of service) unless an exemption is granted.
What Happens if I Cannot Locate My Ex to Serve the Paperwork or They Refuse to Give an Address?
If you cannot locate your ex-spouse or they refuse to provide an address for service of the divorce papers, you can apply to the Court for either Substituted Service or Dispensation of Service.
- Substituted Service allows you to serve the documents via alternative means, such as emailing them to a known email address or delivering them to a family member or friend who is likely to pass them on.
- Dispensation of Service allows you to proceed without serving the documents, but you must provide evidence to the Court showing the steps you’ve taken to locate your ex-spouse. The Court will assess if you’ve made sufficient efforts to serve the papers and may grant dispensation if reasonable attempts have been unsuccessful.
In either case, it’s essential to seek legal advice to guide you through this process and ensure that all legal requirements are met.
Fees & Financial Hardship
Filing Fees for Divorce Applications
- Sole Application: $1,100
- Joint Application: $1,100
- Reduced Fee (Concession): $365 (for those who qualify, such as concession card holders or those facing financial hardship).
These filing fees are current as at November 2024 and are standard across all Australian states, including Queensland, and can be paid through the Commonwealth Courts Portal when lodging your divorce application.
The cost of engaging a family lawyer for divorce-only proceedings varies based on complexity, hourly rates, and circumstances. Simple cases with no disputes may cost less, but fees can range from $1,500 to $5,000 or more if legal complexities arise.
For those experiencing financial hardship, the court filing fee can be reduced based on special circumstances. Additionally, if you’re unsure about related legal matters, such as de facto relationships or separation under one roof, you may want to consult or seek legal help from a family lawyer.
What Happens on the Court Hearing Day?
Not everyone needs to attend Court for a divorce hearing in Australia. In some straightforward matters, where no children under 18 are involved, a divorce may be processed wholly online. If you do need to attend Court, on the day of your Court hearing, the Court will review your divorce application. They will make sure all the necessary documents have been filed and any required service has been completed.
Do I Have to Attend?
- If you’ve filed a sole application and there are children of the marriage under 18, you will need to attend the court hearing. The hearing can often be done via phone or video.
- If it’s a joint application or there are no children under 18, attendance is usually not required unless there are special circumstances – such as separation under one roof.
What Court Will It Be Held In?
Your divorce hearing will be held in the Federal Circuit and Family Court of Australia. Most divorce hearings are straightforward, and in many cases, you will not need to appear in person.
You can track your case and hearing date through the Commonwealth Courts Portal for updates and instructions on whether attendance is needed.
What Do I Need to Do or Say At The Court Hearing?
If you need to attend, the Court may ask questions to confirm that:
- You and your spouse have been separated for 12 months.
- Proper arrangements for any children under 18 have been made.
- There is no chance of reconciliation.
Be prepared to answer these questions clearly, and bring along any necessary documents, including your marriage certificate and proof of service if required.
Step 4: After Your Divorce
Once the divorce order is granted, your divorce becomes final one month and one day after the Court hearing. However, there are still several important next steps to consider, depending on your circumstances:
- Property settlement: You have a time limit of 12 months from the date your divorce order becomes final to initiate property division proceedings in the Family Law Courts.
- Parenting orders: If you have children, you may need to apply for parenting orders to formalise child custody arrangements.
- Spousal maintenance: If you or your former spouse require financial support, you may also need to apply for spousal maintenance and the 12 month limit applies..
Final Steps
Once the divorce order is granted, you will receive a copy of your order through the Commonwealth Courts Portal. From this point, you’re officially divorced, and your legal status is changed. However, be mindful that this doesn’t resolve issues like financial support, property settlement, or child custody – these will need to be addressed separately with the help of Family Lawyers.
After Your Divorce
Once the divorce order is final, there are several next steps to consider:
- Property settlement: You must resolve property division within 12 months of the divorce becoming final.
- Parenting arrangements: Apply for parenting orders to establish formal arrangements for child custody.
- Spousal maintenance: If required, apply for spousal maintenance to ensure financial support after separation. The 12 month limitation period applies..
These issues are best addressed with the help of Family Lawyers to ensure your rights are protected throughout the legal process.
When Can You Apply for Property Settlement and Parenting Matters?
Property settlement and parenting orders are separate from the divorce process. For property division, you must apply within 12 months of your divorce becoming final. After this time, you will need special permission from the Court to proceed with a property settlement.
Parenting matters, including child custody and parenting orders, can be addressed before, during, or after divorce. However, resolving these issues as soon as possible is advisable to avoid complications.
When Can I Remarry?
Once your divorce is granted, it will become final one month and one day after the divorce order is issued. After this period, you are free to remarry if you wish. You will receive an official divorce order through the Commonwealth Courts Portal, confirming your divorce is finalised. Only once this has occurred can you legally enter into a new marriage.
How Can Family Lawyers Help with Divorce Proceedings?
Family lawyers can provide invaluable support during divorce-only proceedings, particularly if you’re unfamiliar with the legal process or have complications like locating your ex, disputes over service, or concerns about proper arrangements for children. They assist with:
- Preparing and filing divorce applications (both sole and joint).
- Navigating the service of documents.
- Ensuring compliance with legal requirements, including child and financial arrangements.
- Representing you in court hearings (if necessary).
If you need further guidance, consult our lawyers for assistance with family law matters.
By following this step-by-step guide, you’ll be well-prepared to navigate the divorce process in Queensland, ensuring all the necessary legal processes are met and any particular circumstances are adequately considered.
