A divorce is typically obtained by filing an application in the Federal Circuit Court (formerly known as the Federal Magistrates Court) along with payment of the filing fee.
There are essentially three things that must be proved prior to the application for divorce being approved - marriage, separation and jurisdiction.
Prior to granting a divorce, the court must first be satisfied that a valid marriage exists. Typically this is done by producing a certified copy of a marriage certificate or, where the marriage certificate is in a foreign language, accompanied with an English translation. In circumstances where a marriage certificate cannot be produced, evidence of a valid marriage may need to be given by way of affidavit.
The court must also be satisfied that the parties to the marriage have been separated for a period of at least 12 months. The separation date claimed by most people is the date at which one of the parties leaves the marital home, but it doesn't need to be. Separation under one roof is acceptable where at least one of the parties to the marriage regards the marriage as over, and this can be proved by way of affidavit.
Jurisdiction for the purpose of the court granting a divorce is established if either party to the marriage regards Australia as his or her home and intends to live in Australia indefinitely (ie. is domiciled in Australia), if he or she lived his or her whole life in Australia, is a citizen of Australia or ordinarily lives and has lived in Australia for the 12 months prior to filing the divorce application.
Unless the court is satisfied that appropriate arrangements for any children are in place, the application for divorce will be refused. Arrangements need not be formally solemnised by way of parenting orders, but the court must be satisfied that the children are being appropriately cared and provided for.
Preparing the divorce application and appearing at a divorce hearing is perhaps one of the most straight forward proceedings in the family law courts. In some cases, a divorce application can be successfully made by an unrepresented applicant.
In many case, however, difficulties arise in producing sufficient admissible evidence to satisfy the court as to jurisdiction, the validly of the marriage and the period of separation. Proving service on the respondent can also be a source of problems and a reason for the court refusing to make the divorce decree. For these reasons, we recommend that you engage a family law solicitor to prepare your application and to appear before the court to ensure that the application travels smoothly.