Divorce

What do I need to show to get a divorce?

Australia has 'no-fault' divorce laws. This means you and your ex-partner do not need to show that someone was at fault for the breakdown of the relationship. The court does not need to know why the relationship has broken down either.

You will need to show the court that your marriage has “broken down irretrievably”. This means that you and your ex-partner have broken up and there is no chance of reconciliation (getting back together). This is shown by being separated from your ex-partner for at least 12 months before making an application for divorce. You will need to write the date of separation on the divorce application. You do not need to provide other evidence to prove this, unless your ex-partner disputes the date of separation you have written.

You do not need to be physically separated from your ex-partner for the whole 12 months. The court recognises a ‘separation under one roof’. This is where spouses continue to live at the same address after they have broken up, but they live their lives separately and apart from each other. If you have been living separated under one roof with your ex-partner for any period after your separation, you will need to file a sworn statement (called an ‘affidavit’) to explain:

• Why you consider the date of separation to be the ‘date of separation’. For example, because you had a conversation with your ex-partner and one or both of you said you wanted to separate.
• The nature of your relationship before the date of separation compared to after the date of separation. For example, after the date of separation you slept in separate bedrooms, opened separate bank accounts, told family and friends you had broken up, and you no longer interacted with each other like before.

You will also need to ask a relative or a friend who knows about your situation to prepare an affidavit. Their affidavit should include what they know about your separation, such as the date they first found out you and your ex-partner broke up, how they found out, and anything they can say about how you and your ex-partner present yourselves in the community after this date.

If you and your ex-partner apply for a divorce together (a joint application), then you will both need to prepare separate affidavits. 

What if I was married for less than 2 years?

If you have been married for less than 2 years (including at least 12 months of separation), you will need to go to marriage counselling and a get certificate signed by the counsellor showing you have tried counselling to consider reconciling with your ex-partner. You will need to give this certificate to the court when you file your application for divorce. The certificate is a court form that you can get from the Family Court of WA website.

In some cases, you may be able to apply for divorce without having to go to marriage counselling first. This is called an ‘exemption’. An example of when a person might get an exemption is if there has been family violence or abuse.

If you are asking for an exemption, you will need to prepare an affidavit explaining to the court why counselling is not appropriate in your case. This affidavit must be given to the court when you file your application for divorce.

How can I apply for a divorce?

You can apply for a divorce online through the eCourts Portal of WA.

You can make a sole application to the court for a divorce (which means only you sign the application) or a joint application with your ex-partner (where you both sign the application).

You will need to pay a fee when you apply to the court for a divorce. You will need to pay a fee when you apply to the court for a divorce. For information about filing fees, see the Family Court of WA webpage, Fees.

If you make a sole application, you will need to give a copy of the application and any documents you filed with the court to your ex-partner. This is called ‘service’ or ‘serving’ your ex-partner. There are additional court forms you will need to prove you have served your ex-partner. There are also rules about how you must serve your ex-partner and by when:

• By post or electronic communication
  If you send the documents to your ex-partner by post or electronic communication, they must sign and return a form called an ‘Acknowledgement of Service’. You must complete an ‘Affidavit of Service’ and an 'Affidavit - Proof of signature’ form. You must then file all three forms with the court.
   
• By hand
  If you do not think your ex-partner will sign the form to say they have received your divorce documents, you can serve your ex-partner ‘by hand’. This involves getting a private process server or someone you know who is over the age of 18 to personally deliver the documents to your ex-partner.
  If your ex-partner refuses to take the documents, the person serving the documents just needs to tell them what the documents are and when the hearing date is. The person can then leave the documents at your ex-partner’s feet. The person who served your ex-partner will need to sign an ‘Affidavit of Service’ and you must file this form with the court.
   
• Timeframes
  If your ex-partner lives in Australia, you must serve them at least 28 days before the divorce hearing. 
  If your ex-partner lives overseas, you must serve them at least 42 days before the divorce hearing.

If you do not serve your ex-partner within these timeframes, the court will likely adjourn (postpone) your hearing to allow your ex-partner time to consider your application and whether they want to respond.

If you do not serve your ex-partner at all or in accordance with the rules, the court will adjourn your case until you have served your ex-partner properly.

For more information about how to serve your ex-partner, and to get a copy of the forms, visit the Family Court of WA website.

Do I need to attend the divorce hearing?

You only need to attend the divorce hearing if:

• You or your ex-partner have made a sole application for divorce and you have children under 18 years of age (including adopted and stepchildren). The court will need to know that there are arrangements in place for your children before it will grant the divorce. However, you do not need to have reached a final agreement about care arrangements or have court orders. 
• Either you or your ex-partner filed a response with the court objecting to the divorce. If you do not attend the hearing, the court might go ahead and make a decision about the divorce without you being there. 

If you and your ex-partner have made a joint application, neither of you will have to attend court, even if you have children under 18 years of age.

If you do not have children under 18 years of age, you do not need to attend court. This is regardless of whether it is a sole or joint application for divorce.

Can I object to a divorce?

There are only two reasons you can object to a divorce:

1. You and your ex-partner had not been separated for 12 months when the divorce application was made, or
2. The court does not have jurisdiction (power) to grant the divorce.

If your ex-partner applies for a divorce, and you want to object to the divorce, you should get legal advice about your situation.

To object to a divorce, you need to file a ‘Form 3A Response to an Application for Divorce’ form and serve the filed document on your ex-partner. You have a set time in which to file a response:

• If you were served in Australia, you must file your response within 28 days of being served.
• If you were served overseas, you must file your response within 42 days of being served.

If you file a response, you must attend the divorce hearing. If you do not attend the hearing, the court can still hear the case without you and might make a decision in your absence.

What if I do not agree with what my ex-partner has written in the application for divorce?

If there are mistakes in the application such as the spelling of names or incorrect details including about the arrangements for children, you can ask for the mistakes to be fixed by the court without objecting to the divorce itself. To do this you must file an affidavit explaining what information in the application is incorrect and providing the correct information. You must serve a copy of your filed affidavit on your ex-partner.
 

More information

Legal Aid WA

• Webpage - Get Help
• Webpage - Separation

Family Court of WA

• Webpage - Applying for a divorce
• Webpage - Separation under one roof
• Webpage - Married for less than two years
• Webpage - Serving a divorce application
• Webpage - Responding to a divorce application
• Webpage - Affidavits

 

Reviewed: 11 October 2024