To file for divorce in Australia, your marriage must have broken down irretrievably. While you can enter into final orders about the division of property and determine parenting arrangements at any time from the date of separation, you must have been separated for 12 months and 1 day to apply for divorce. This article explores what you need to know about how to file for divorce if you married overseas including the requirements and other considerations relating to the divorce process in Australia.
Can I apply for divorce in Australia if I was married overseas?
If you were married overseas, you can still apply for divorce in Australia if when the application is made, you or your spouse are:
- an Australian citizen;
- domiciled in Australia; or
- ordinarily resident in Australia and have been resident in Australia for 1-year prior to filing for divorce.
If you have lived under the same roof during the 12-month period prior to filing your divorce application, you will need to provide evidence to the Court about the nature of your relationship while living under the one roof. This usually involves a friend or relative filing an affidavit (a sworn statement) setting out their observations about the difference in your relationship pre- and post-separation. Their evidence may include observations about how you and your spouse no longer socialise or share meals together. They may also include evidence about your sleeping arrangements within the household.
How to file for divorce in Australia
An application for divorce can be made by one or both parties to the marriage. A joint application for divorce is where you and your spouse both agree to filing the application together. A sole application for divorce is made by either party and there may not be agreement as to the information contained within the application for divorce.
The Court will require evidence of the marriage, such as a copy of your marriage certificate. If you do not have a copy of the marriage certificate, it is best to apply to the relevant authority in the country where the marriage took place. If you are unable to obtain a copy, then you will need to provide an affidavit explaining why you have been unable to provide this.
If the marriage certificate is not in English, you will need to get a translator to translate your marriage certificate into English and provide an affidavit. Generally, the Court requires evidence that the marriage certificate was translated by a Nationally Accredited Translator or Interpreter service.
If you have any existing orders or agreements in place, such as a parenting plan or property orders, you should also include a copy of these in your divorce application.
Once your application for divorce is filed, your application will be allocated a hearing date.
Sole Application for Divorce
If you are filing a sole application for divorce, you will need to serve the documents on your spouse at least 42 days before the date of the divorce hearing if they are living or travelling overseas (or 28 days before the date of the divorce hearing if they are in Australia).
If you file a sole application and have children under the age of 18 years, you will need to attend the divorce hearing.
Joint Application for Divorce
If you file a joint application for divorce, you and your spouse must provide an address for service of documents in Australia. The address can be the address of a family member or friend who can pass on any documents served to this address.
If you file a joint application, you are not required to attend the divorce hearing even if you have children under the age of 18 years.
How to serve divorce papers overseas and in Australia
If you are filing a sole application for divorce, you need to prove that you have ‘served’ the application on your former spouse (so that they are aware of the court proceedings).
You cannot email the information to your former spouse (unless the Court has permitted you to do so). Your application for divorce must be physically served on your spouse.
This is often the most difficult aspect of divorce applications.
For clients whose spouse is either in Australia or overseas, we usually engage a process server, whose task it is to serve your application and seek your spouse’s signature to acknowledge they have received notice of the court proceedings. We then file evidence that the documents have been served.
If your spouse is in Australia, they must be served no less than 28 days before the scheduled divorce hearing.
If your spouse is outside of Australia, they must be served no less than 42 days before the divorce hearing. There are often more obstacles or hoops to jump through if they are overseas and given the timeframe, there is no room for error.
If your spouse does not sign to acknowledge receipt of your application for divorce, the process server will need to prepare an affidavit which sets out that they served the documents on your former spouse, which will need to be filed with the Court.
If you don’t file evidence with the Court that the documents have been served, the Court will consider that the application has not been served and that the other party is not aware of the proceedings. If this occurs, the Court may delay the granting of your divorce (known as a Divorce Order).
If your spouse has been historically obstructive, you may wish to seek orders for substituted service (i.e. where documents are served on your former spouse’s friend or family member) or for dispensation of service (where you may proceed without serving your former spouse).
Divorce with Children
If you have children under the age of 18 years, the Court must be satisfied that there are proper arrangements in place for them. As part of your application, the Court considers information in relation to their safety, care and wellbeing. This includes information about:
- Care arrangements for the children;
- Schooling and education;
- Financial support for the children; and
- Health of the children
At the hearing, a notation will be made on the Divorce Order, which states that the Court is either satisfied or not satisfied as to there being proper arrangements in place for the children.
When to seek advice from a family lawyer
If you are unsure about how to file for divorce if you married overseas or if there are complexities in your matter, whether that be you do not have the documents you require or your former spouse is overseas, unlocatable, obstructive, or there are family violence concerns, you should seek immediate advice.
If you are looking to remarry, you can only do so once your Divorce Order becomes final (1 month and 1 day after the court hearing). Family lawyers can provide you with advice about seeking the court’s leave to abridge (shorten) this time period.
Where there are overseas assets or unresolved parenting proceedings, you should seek advice from a family lawyer before filing for divorce in Australia (as they can provide you with advice about which jurisdiction is the most beneficial for you to file an application in). Not all family law systems are the same and in some cases, knowing how to file for divorce if you married overseas in Australia will preclude a party from obtaining a share of assets held overseas (including superannuation interests) or spousal maintenance.
Understandably divorce can be an emotional experience for one or both parties so if you do not wish to communicate with your former spouse about the divorce process, then your family lawyer can do that on your behalf.
However, knowing how to file for divorce if you married overseas is only one aspect of the family law process. If you have broader issues that require support such as resolving your parenting arrangements or reaching an agreement about the division of your assets, then you will benefit greatly from the advice and insights that only family lawyers like those on our team can provide.
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DDCS Lawyers specialise in all aspects of family law and can help guide you through the divorce application process. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
