Family Law Practice Direction: Divorce proceedings

(FAM-DIVORCE)

1. Introduction

1.1 This Practice Direction applies to all family law proceedings seeking:

  1. a divorce order;
  2. the extension or reduction of the period at the expiration of which the divorce order will take effect pursuant to section 55 of the Family Law Act 1975 (Cth) (Family Law Act); and
  3. an application for rescission of a divorce order pursuant to sections 57 and 58 of the Family Law Act (divorce proceedings).

1.2 It is to be read together with:

  1. the Family Law Act;
  2. the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules); and
  3. Central Practice Direction – Family Law Case Management.

1.3 This Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.

1.4 To the extent this Practice Direction is inconsistent with any act, regulation, rule or other legislative provision (whether or not expressly listed above), the act, regulation, rule or other legislative provision shall prevail.

Before a proceeding starts

1.5 Parties to divorce proceedings are exempt from complying with the pre-action procedures in Schedule 1 of the Family Law Rules under rule 4.01(2)(a).

2. Application

2.1 An application for a divorce order is commenced by filing an Application for Divorce by both parties jointly (joint application) or by one party solely (sole application).

2.2 The applicant(s) must pay the filing fee set by regulation (including any reduced fee). A Judge or Judicial Registrar may require a party to give an undertaking to pay a filing fee before accepting a document for filing.

Where to commence

2.3 A divorce proceeding must be commenced in the Federal Circuit and Family Court of Australia (FCFCOA) (Division 2).

2.4 Divorce proceedings cannot be commenced in the FCFCOA (Division 1).

Parties to divorce proceedings

2.5 A divorce proceeding may only be commenced by a party to the marriage.

2.6 An application must include all necessary parties: see Part 3.1 of the Family Law Rules.

Filing the marriage certificate

2.7 A copy of the marriage certificate must be filed with an Application for Divorce.

If the marriage certificate is not in English, the applicant must also file a translation of the marriage certificate in English annexed to an Affidavit – Translation of Marriage Certificate.

2.8 The Affidavit – Translation of Marriage Certificate must be completed by the person who made the translation verifying the translation and setting out the person’s qualifications as a translator.

2.9 If the applicant is unable to locate a marriage certificate, the applicant must either:

  1. In relation to a marriage conducted overseas – file an affidavit addressing the following:
    1. why the marriage certificate is unable to be provided;
    2. details about the marriage ceremony, including time, place and form;
    3. where appropriate, the requirements of a valid marriage in the place where the marriage ceremony took place; and
    4. confirmation that the parties recognised one another, and were recognised by others as spouses following the marriage ceremony; or
  2. in relation to a marriage conducted in Australia – apply to the relevant State or Territory Registry of Births, Deaths and Marriages to obtain a copy of the marriage certificate and file it with the Court.

Filing evidence of jurisdiction

2.10 If the applicant and respondent were both born overseas then additional evidence is required to prove that the Court has jurisdiction:

  1. If a party is an Australian Citizen – proof of citizenship such as a Citizenship Certificate or Australian Passport.
  2. If a party is ordinarily resident in Australia and has been ordinarily resident for the 12 months immediately prior to filing their Application for Divorce – evidence such as a Visa Entitlement Verification Online (VEVO) status check or copies of bank statements.

Other applications

2.11 Any other application in a divorce proceeding (being any application for the extension or reduction of the period at the expiration of which the divorce order will take effect, and any application for rescission of a divorce order) is commenced by filing an Application in a Proceeding.

2.12 An applicant filing an Application in a Proceeding must file an affidavit setting out the facts relied upon in support of the orders sought.

Other circumstances when an affidavit is required

2.13 An Affidavit for eFiling Application (Divorce) is required to be filed by the applicant in a sole application, or both parties in a joint application, at the time of filing the Application for Divorce.

2.14 An affidavit is required to be filed with an Application for Divorce if any of the following circumstances apply:

  1. the applicant is unable to locate and file the marriage certificate in relation to a marriage conducted overseas (as stated at item 2.9 above); or
  2. where the parties were living separately under the one roof for a period of time during the 12 months preceding the filing of the Application for Divorce (see fact sheet entitled ‘Separated but living under one roof’) noting that multiple affidavits may be required; or
  3. if directed by the Judicial Registrar or Deputy Registrar.

2.15 Any affidavit filed must be in the proper form as outlined in rules 2.14 (Formal requirements for documents) and 5.08 (Limit on number and length of affidavits) of the Family Law Rules.

Notifying the other party

2.16 A joint application does not need to be served.

2.17 In a sole application, the applicant must serve the following documents on the respondent in accordance with Division 2.6.4 of the Family Law Rules:

  1. the Application for Divorce and supporting documents;
  2. the Marriage, Families and Separation brochure;
  3. if service is to be effected by post within Australia:
    1. an Acknowledgment of Service (Divorce); and
    2. an envelope that is pre-addressed to the applicant’s address for service and has the correct postage for the return of the Acknowledgment of Service (Divorce) to the applicant; or
  4. if service is to be effected by hand, an Acknowledgment of Service (Divorce).

2.18 Following service upon the respondent and prior to the hearing date, the applicant must file an Affidavit of Service by Post (Divorce) or Affidavit of Service by Hand (Divorce), depending on the method of service used to serve the respondent:

  1. If the documents were served by post an Acknowledgment of Service (Divorce) signed by the respondent is required.
  2. If the respondent is served by hand by a person who did not know or was unable to identify the respondent, the applicant must also file additional evidence that the person served was the respondent such as an Acknowledgment of Service (Divorce) signed by the respondent and an Affidavit Proving Signature (Divorce).

2.19 Parties should refer to the Divorce Service Kit for step by step instructions regarding service.

Difficulty notifying the other party

2.20 If the applicant in a sole application is unable to serve the respondent by hand or by post, the applicant may apply for orders to serve the document in another way (such as by email or social media) or to dispense with service. Such an application is to be made by filing an Application in a Proceeding with a supporting affidavit setting out the facts relied upon for the application. 

2.21 The applicant will be required to attend a hearing by telephone if an Application in a Proceeding is filed, unless the Registrar directs that attendance is not required.

What the Court will do next

2.22 Upon filing the Application for Divorce and supporting documents, the Court will fix a date for the hearing as soon as practicable for the first Court event. If the Application for Divorce is eFiled, the applicant/s can choose the next available date on the Commonwealth Courts Portal.

2.23 The date fixed must be:

  1. if the respondent is in Australia, at least 42 days after the application is filed; or
  2. if the respondent is outside Australia, at least 56 days after the application is filed.

2.24 Divorce hearings are conducted by a Judicial Registrar or Deputy Registrar.

3. Acknowledging or responding to an application

3.1 A respondent may:

  1. acknowledge service by completing the Acknowledgment of Service (Divorce) and returning it to the applicant; and/or
  2. request to attend the hearing by email to National.Divorce@fcfcoa.gov.au copied to the other party, no later than 7 days before the date fixed for hearing; or
  3. file a Response to Divorce if they wish to oppose the divorce order sought by the applicant or clarify anything contained in the Application for Divorce.

3.2 If the respondent wishes to oppose the divorce order sought, a Response to Divorce must be filed:

  1. within 28 days after the Application for Divorce was served on the respondent, if the respondent is served in Australia; or
  2. within 42 days after the Application for Divorce was served on the respondent, if the respondent is outside of Australia.

3.3 A Response to Divorce must be served on the applicant as soon as practicable after filing.

4. Attendance at hearing

4.1 Most divorce hearings will occur in the absence of the parties.

4.2 If attendance is required, all divorce hearings before a Registrar will be via telephone. The dial-in details will be available on the Commonwealth Courts Portal following filing, and on the daily court list from 4pm (AEST) the day before the hearing.

When attendance at a hearing is not required

4.3 The Court may determine an Application for Divorce in the absence of the parties where:

  1. in a sole application:
    1. a Response to Divorce has not been filed;
    2. the applicant has not requested to attend the hearing; and
    3. the respondent has not requested to attend the hearing; or
  2. in a joint application, both parties have requested not to attend the hearing.

4.4 If the applicant has not requested to attend the hearing and the respondent subsequently requests to attend the hearing, the Registry will inform the parties of the date and time for the telephone hearing. The applicant is not required to attend the telephone hearing in these circumstances if they do not wish to do so.

When attendance at a hearing is required

4.5 If a Response to Divorce is filed by the respondent:

  1. the hearing must proceed in open court; and
  2. each party must attend court or be represented by a lawyer;

unless the Response to Divorce does contest the divorce or raise any issues with respect to the Court’s jurisdiction or power to make the order.

4.6 If when required to attend:

  1. one party fails to attend the hearing either in person or represented by a lawyer, the other party may proceed as if their Application for Divorce or Response to Divorce was undefended; or
  2. both parties fail to attend the hearing either in person or represented by a lawyer, the Application for Divorce and/or Response for Divorce may be struck out or dismissed.

Failure to comply

4.7 A failure to comply with this Practice Direction and any directions of the Court may result in the application being struck out or dismissed.

When a divorce order takes effect

4.8 A divorce order takes effect at the expiration of one month from the making of the divorce order, unless otherwise ordered by the Court: see subsection 55(1) of the Family Law Act.

5. Further information

5.1 For information on how family law proceedings are conducted in the FCFCOA, please refer to Central Practice Direction – Family Law Case Management.

5.2 Parties should also consult the FCFCOA website at www.fcfcoa.gov.au for further information about divorce proceedings.

 

The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 1 September 2021
Updated: 27 May 2021, 7 September 2022, 31 May 2023, 10 June 2025

Related information:
How do I apply for divorce?
Divorce: Overview
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