How to get a divorce in NSW: A step-by-step state guide

Divorce is a significant event – but it doesn’t have to be overwhelming. In fact, over the years the process of how to get a divorce in New South Wales (and all across Australia) has been substantially streamlined, making it more straight forward than ever.

Of course, understanding the process can certainly help you regain a feeling of control and move forward with confidence. So, here is everything you need to know about how to get a divorce in NSW.

What are the requirements/criteria for getting a divorce in NSW?

Since the Family Law Act 1975 came into effect, the requirements and criteria for getting a divorce in NSW are the same as every other state in Australia. These are:

1. There has been an ‘irretrievable breakdown’ of the marriage.
2. You have been separated from your spouse for 12 months and there is no likelihood you’ll get back together.
3. You and your ex meet the residency requirements because you’re Australian citizens, have lived in Australia and consider it your permanent home or you normally live in Australia and have lived here for at least 12 months before filing for divorce.

Every divorce in Australia is handled at the federal level by the Federal Circuit and Family Court of Australia regardless of which state you’re divorcing in.

How to get a divorce in New South Wales

Getting divorced in NSW is a straightforward process and generally involves five main steps.

Step 1. Separate

Before you can divorce, you must separate from your partner. There are no legal requirements for this process. You simply decide to separate, tell the other partner and then take action based on that decision.
One partner alone can decide to separate. The other partner does not have to agree.

Step 2. Lodge your divorce application

The next step is to lodge your divorce application, and this is the bulk of the process of how to file for a divorce in Australia. To lodge your application, you’ll need to take the following actions:

• Wait 12 months after the date of separation.
• Decide whether you’re applying jointly (i.e., together with your former partner) or solely (i.e., on your own).
• Register for the Commonwealth Courts Portal so you can apply for divorce online. To register, go to www.comcourts.gov.au, click on ‘New users can register now’ and create your username and temporary password. You’ll then receive an email to help guide you through the rest of the registration process.
• Prepare your documents. The documents that you need will include:
  1. A copy of your marriage certificate. If you can’t get a copy of your marriage certificate, you must file an affidavit explaining the circumstances instead.
  2. Proof of residency if you aren’t an Australian citizen.
  3. A counselling certificate if you’ve been married for less than two years. To get this certificate, you will be required to attend reconciliation counselling with your ex. If you or your ex aren’t able to attend counselling, you’ll need to file an affidavit instead.
  4. Details of your parenting arrangements if you have children under the age of 18. This will need to set out the particulars around the care of your children, including schooling, daycare, contact and custody, and even financial support.
  5. An affidavit of eFiling that has been witnessed by a lawyer or justice of the peace.
  6. If you’re separated but living together, you’ll also need to provide additional evidence via affidavit. This will simply provide evidence that there was a change in your marital circumstances despite continuing to live together.
• Complete your application. Once you’ve gathered all your documents, you can complete your application for divorce on the Commonwealth Courts Portal.
• Print out and sign the Affidavit for eFiling Application (Divorce). This will need to be signed in front of a lawyer or Justice of the Peace.
• File your application. Once you have everything filled out and completed and your affidavit sworn, you can lodge your application on the Commonwealth Courts Portal. You’ll need to pay the filing fees as well at this time.

Step 3. Serve the divorce papers

If you filed a sole application for divorce, you’ll now need to serve a copy of your divorce application and all the relevant documents on your spouse. This can be done via post or by hand. However, it must be done at least 28 days before any court hearing. If you’ve filed a joint application, then you can skip this step.
If you plan on serving the documents yourself, download the required forms from the Court’s Divorce Service Kit. If you want to have the papers served by hand, then you’ll need to engage another person to do this for you. You are not permitted to serve the documents yourself.
For more information on serving divorce papers, head to the Family Court’s website.

Step 4. Prepare for your divorce hearing

It’s not always necessary for you to attend your divorce hearing, particularly if you file jointly and have no children under the age of 18. Instead, you can manage the entire process via written submissions.

If you do need to attend your divorce hearing, it’s a good idea to engage a lawyer to help you with the process.

Step 5. Your divorce is finalised

Your divorce in NSW will generally become final one month and one day after the date of your hearing. You can download your ‘decree absolute’ from the Commonwealth Courts Portal and you’re free to marry again!

How much does a divorce cost in NSW?

The cost of divorce in NSW is set by the Federal Circuit and Family Court so is the same regardless of where you live in Australia. In most cases, the fee to apply for divorce is $1,100. However, under some circumstances, you may be eligible for a reduced fee of $365.
For example (among others);

• if you hold a pensioner card;
• a health care card;
• have been granted Legal Aid; or
• are under the age of 18.

If you think you meet the criteria for a reduced fee, you’ll be required to provide evidence via an affidavit.

How long does a divorce take in NSW?

Because the process of filing for a divorce in NSW is fairly straightforward, the outcomes are also fairly quick. In fact, it generally only takes around four months from the date the Federal Circuit and Family Court receives your application to the granting of your divorce order.

How do I get a divorce certificate in NSW?

You can get a divorce certificate in NSW by logging into the Commonwealth Courts Portal. You will need to go to the tab ‘Available files’, select your file, then select ‘List of Orders’ and from there you’ll be able to download your divorce certificate.

Getting expert support

Our team at Watts McCray understands how helpful understanding the divorce law system can be when you’re in the process of getting a divorce in Australia. That’s why it’s our goal not just to smooth the process for you but also to make sure you’re kept aware of all the relevant legal options, rules, and developments that might impact you and your family.

Request a call back from our supportive and compassionate team via the form below if you have further questions. Or feel free to call us directly.