Sole Application for Divorce Explained: Rights, Process, and Timeline

• No-fault divorce system: Australia’s Family Law Act 1975 allows divorce based solely on an irretrievable breakdown of the marriage, proven by 12 months and one day of separation.

• Independent filing rights: You can apply for divorce without your spouse’s consent, as long as eligibility and separation requirements are met.

• Clear, step-by-step process: Filing involves preparing documents, submitting through the Commonwealth Courts Portal, serving papers on your spouse, and attending a hearing if children are involved.

• Timeline and cost: The process typically takes 4–6 months from filing to finalisation, with fees around $1,060 (reduced fees available).

• Children’s welfare prioritized: If children under 18 are involved, the Court must be satisfied with their care and living arrangements before granting the divorce.

• Sole vs. joint application: A sole application offers control when cooperation isn’t possible, while a joint application is simpler and faster when both parties agree.

• Potential challenges: Common issues include difficulty serving documents, proving separation under one roof, and managing legal costs.

Ending a marriage is rarely straightforward, and the process can feel overwhelming both from a personal and a legal standpoint. In Australia, if your relationship has reached the point of no return, it’s important to know the correct legal steps to take. One pathway available is making a sole application for divorce, where one spouse takes the initiative to file without the other’s involvement.

This guide will walk you through the essentials of a sole application for divorce in Australia. We’ll discuss the rights you hold as the applicant, the stages of the legal process, how long it typically takes, and what to expect when issues like children, property, or expenses come into play. Whether you’re about to file or are still exploring your options, this resource is designed to provide clarity and practical insight to help you move forward with confidence.

Understanding Divorce in Australia

Divorce in Australia is governed by the Family Law Act 1975, which establishes the principle of no-fault divorce. This means the Court does not consider why the marriage ended. Instead, the only requirement is to prove that the marriage has broken down irretrievably. This is shown by a separation of at least 12 months and one day.

There are two ways to apply for divorce: jointly, where both spouses file together, or solely, where one person applies independently. A sole application for divorce is often chosen when one spouse is unwilling or unable to participate in the process, or when communication between the parties has broken down.

Knowing how this system works is the first step in preparing for the journey ahead. Let’s dive deeper into how a sole application fits into this framework.

What Is a Sole Application for Divorce?

A sole application for divorce is when only one party to the marriage files the application with the Court. This is distinct from a joint application, where both parties agree and sign together.

If you file a sole application, you are known as the applicant, while your former spouse is called the respondent. The applicant is responsible for filing all the necessary paperwork, serving the documents on the respondent, and attending the divorce hearing if there are children under 18.

Many Australians choose the sole application path for several reasons:

• The other spouse does not want to cooperate.

• There is little to no communication between the parties.

• The applicant wants to take control of the process.

• There are concerns about urgency, for example, remarriage plans.

It’s worth noting that while a sole application might seem more challenging because you need to handle service of documents and sometimes attend Court, it is often the only practical solution when cooperation is not possible.

Rights in a Sole Application for Divorce

When you file a sole application for divorce, you retain several rights that protect your interests during the process. These rights are essential to ensure fairness, even if the other spouse does not actively participate.

1. Right to Apply Independently
   You do not need the consent of your spouse to proceed with a sole application. As long as you meet the requirements, you can move forward.

2. Right to Fair Notice
   The law requires that the respondent be served with the divorce application. This ensures they are aware of the proceedings and have the opportunity to respond.

3. Right to Representation
   You may choose to engage a lawyer or represent yourself. Legal aid and community legal centres can also provide assistance.

4. Right to Have the Application Heard
   The Court will review your application even if the respondent does not engage with the process. Your spouse cannot prevent the divorce simply by ignoring the papers.

5. Right to Separate Divorce from Other Matters
   Divorce proceedings are separate from property settlements, spousal maintenance, and parenting arrangements. You have the right to finalise your divorce while dealing with these matters independently.

By understanding these rights, applicants can approach the process with greater confidence, knowing the law provides a clear framework to protect their position.

Who Can Apply for a Sole Divorce in Australia?

Before filing, it’s important to confirm your eligibility to apply for divorce in Australia. The Family Law Act sets out specific requirements. You can apply for a divorce in Australia if you or your spouse:

• Treat Australia as your home and plan to reside in the country indefinitely, or

• Are an Australian citizen by descent, birth, or grant, or

• Ordinarily live in Australia and have done so for at least the past 12 months.

Additionally, you must meet the separation requirement of 12 months and one day. Separation can include situations where you live under the same roof but are no longer in a marital relationship. Evidence, such as affidavits, may be required in those cases.

Meeting these criteria ensures your application can proceed without being dismissed.

Sole Application for Divorce Process: Step-by-Step

Filing a sole application for divorce involves several legal steps. While it may seem overwhelming, breaking it down into stages can make the process more manageable.

Step 1: Preparation

• Ensure you meet the eligibility criteria, including the separation period.

• Gather key documents such as your marriage certificate and identification.

• If the certificate is in another language, you’ll need a certified translation.

Step 2: Filing the Application

• Complete the Application for Divorce form online through the Commonwealth Courts Portal.

• Pay the filing fee, which is currently around $1,060, though fee reductions may apply for eligible applicants.

Step 3: Serving the Documents

• You must serve the application on your spouse at least 28 days before the hearing (42 days if they are overseas).

• Service cannot be done by you personally; it must be arranged through a process server or another adult.

Step 4: Attending the Hearing

• If there are children under 18, you must attend the divorce hearing.

• If no children are involved, attendance may not be required.

Step 5: Divorce Order

• If the Court is satisfied that the requirements have been met, the divorce will be granted.

• The divorce gets finalised one month and one day after the hearing.

This clear process ensures that even when only one spouse is involved, the system works fairly and transparently.

How Long Does a Sole Application for Divorce Take?

The timeline for a sole application for divorce can vary depending on individual circumstances, but in general, the process takes several months.

• Preparation: Gathering documents and completing the application can take a few weeks.

• Filing to Hearing: After filing, the hearing is usually scheduled within 2–3 months.

• Finalisation: The divorce order takes effect one month and one day after the hearing.

In total, you can expect the process to take around 4–6 months from filing to finalisation, provided there are no delays with service of documents or additional requirements.

Understanding the timeline helps applicants plan their next steps, especially if they are considering property settlement or remarriage.

Costs of a Sole Application for Divorce

The cost of divorce in Australia depends largely on the filing fee and whether you engage legal assistance.

• Filing Fee: Approximately $1,060.

• Reduced Fee: Around $350 for concession card holders or those experiencing financial hardship.

• Legal Fees: If you engage a solicitor, costs can vary widely, often ranging from $1,500 to $3,000 or more, depending on complexity.

• Process Server Fees: Around $100–$200 for serving documents.

While the costs can add up, fee reductions and self-representation can make the process more affordable. It’s important to plan for these expenses in advance.

Sole Application for Divorce and Children

When children under 18 are involved, the Court places significant importance on their welfare.

If you are applying solely, you must provide details about the children’s living arrangements, education, health, and financial support. The Court will want reassurance that proper arrangements are in place before granting the divorce.

Additionally:

• You must attend the hearing if children are under 18.

• The Court does not make parenting orders during the divorce process, but may raise concerns if arrangements seem inadequate.

• Parenting orders or agreements can be pursued separately if necessary.

This requirement ensures children’s best interests remain a priority during divorce proceedings.

Sole Application vs. Joint Application: Which Is Better?

When considering divorce, many people wonder whether to file jointly or solely. Each option has its advantages and disadvantages.

Sole Application

• Suitable if your spouse is uncooperative.

• Gives you control over the process.

• Requires you to handle the service of documents.

• May involve attending a hearing if children are under 18.

Joint Application

• Shows cooperation between both parties.

• Simplifies the process, as no service of documents is needed.

• Often faster and less stressful.

• Requires both parties to sign and agree.

Ultimately, the choice depends on your circumstances. If cooperation is possible, a joint application may be simpler. If not, a sole application ensures you can still proceed.

Common Challenges in Sole Applications

While straightforward in principle, sole applications for divorce can involve challenges such as:

• Difficulty Serving Documents: Locating and serving your spouse can be stressful, especially if they live overseas or are avoiding contact.

• Living Under One Roof: Proving separation while still sharing a home requires detailed affidavits.

• Children’s Arrangements: Ensuring the Court is satisfied about the welfare of children can add complexity.

• Costs: Legal and service fees can create financial pressure.

Awareness of these challenges can help applicants prepare and seek the right support.

Final Thoughts

A sole application for divorce is an important legal pathway for Australians whose marriage has irretrievably broken down, particularly when cooperation with a spouse isn’t possible. By understanding your rights, following the proper process, and preparing for the timeline and costs, you can approach the divorce process with greater certainty.

While the emotional impact of divorce is undeniable, the legal process is designed to be clear and fair, ensuring both parties are treated with respect. Whether you handle the process yourself or with the support of a lawyer, the key is to stay informed and organised.