It is important to note that when your divorce becomes final, the 12-month time limit for finalising property settlement begins – so you should seek legal advice before applying for divorce.
We offer family law services at FJS Lawyers. We can help you obtain a divorce, but it is essential you know what to expect from the start, as you’ll soon learn in this guide.
Eligibility & Legal Requirements
You must satisfy specific criteria before you can apply for divorce in South Australia.
First, you or the other party must have a sufficient connection to Australia, i.e, either of you are an Australian citizen (by birth or grant) or have been present (lawfully) in Australia for the past 12 months.
Next, you must prove that the marriage has broken down and that there is no reasonable likelihood of reconciliation. This is demonstrated by being separated for at least 12 months before filing the divorce application. You don’t necessarily need to move out of shared accommodation – see Separation under the same roof. However, if you are making a sole application for divorce, you will need to provide the Court with independent evidence (e.g. an affidavit from a friend, neighbour or relative) that the marriage was over despite remaining in the same home, so you should be mindful of continuing shared activities like entertaining friends, shopping and eating together, or going out together.
If there are children under 18 who were living with either party at the time of separation, the Court must be satisfied that proper arrangements have been made for their care, welfare, and development – including details of living arrangements, education, health needs.
Documents & Evidence Needed
You will need to file a copy of your marriage certificate when applying for divorce. If you were married in Australia and cannot find your marriage certificate, you can order one from Registry of Births, Deaths and Marriages in the state or territory where you were married. If you were married overseas, your marriage certificate must be in English (or be translated to English).
The Court will require evidence of your connection with Australia (i.e. citizenship or residency) to confirm jurisdiction.
Choosing Between Joint vs. Sole Application
You can make an Application for Divorce on your own (sole application) or jointly with the other party (joint application).
A sole Application for Divorce is filed by the Applicant and served on the Respondent.
A joint application does not need to be served but requires the agreement and cooperation of both parties.
Whether or not you file a joint application not only depends on the nature of your relationship with the other party. For example, you may choose to file a sole application (even if you do it jointly) where only one party is eligible for a reduction of the court filing fee (i.e. by virtue of a concession card or meeting the criteria for a hardship application).
Filing the Application
An Application for Divorce is filed online via the Commonwealth Courts Portal. You will need access to a scanner, printer, and the simplest way to pay the filing fee is with a credit card.
You will need to swear or affirm an affidavit of e-filing – witnessed by a lawyer or Justice of the Peace, confirming the truth of the details in your application, before uploading and submitting your application.
Contact the court if you are unable to e-file your divorce application for any reason.
During the process of submitting your Application for Divorce, you will be asked to select a hearing date and time, which will appear on the sealed Application. The sealed Application for Divorce is served on the other party (if a sole application).
At FJS Lawyers, we assist clients with the process of applying for and obtaining a Divorce, from start to finish. Contact us to get started.
Serving the Application (For Sole Applications)
Serving the Application for Divorce is the process of delivering the court documents to the other party after it is sealed (filed with the court). It is mandatory for a sole Application for Divorce to be served on the Respondent at least 28 days before the court hearing (if they live in Australia) or at least 42 days before the court hearing (if they live overseas).
You cannot serve the Application for Divorce yourself. You can engage a process server, have a friend or family member over 18 years serve the Application, or serve the Respondent’s lawyer (if they agree to accept service). Once the documents are served, you must provide evidence to the Court by filing an Affidavit of Service on the Court portal.
You must prove that the Application was effectively served before the Divorce will be granted.
Objecting to a Divorce
There are limited grounds to object/respond to a Divorce application and there are time limits within which you must file a Response.
You should obtain legal advice as soon as possible after being served with an Application for Divorce to clarify the grounds upon which you may object.
Court Hearing & Attendance
Divorce hearings are conducted by telephone (virtual courtroom). If required to attend the hearing, you must observe the formalities of the Court which apply equally for virtual hearings.
Attendance is required for sole Divorce applications where there are children under 18 years. Respondents are not required to attend the hearing, but they may do so.
There are other circumstances where attendance of the parties may be required – such as if a Response is filed (which the Respondent needs to serve on the Applicant). The Court will notify the parties of future hearings.
Our experienced team at FJS Lawyers is here to help you with all your Divorce needs. If you are represented, your lawyer will appear and address the Court on your behalf.
Divorce Order & Finalisation
If you have met the required criteria (including service on the Respondent for sole applications), the Divorce will likely be granted at the first hearing. You will be able to see on the Court portal if the Divorce was granted.
If the Court is not satisfied with all aspects of your Application, the Divorce will not be granted. The Court will usually adjourn the hearing and allow an opportunity for you to provide further evidence and/or documents, which will usually be requested via email. If you do not provide the additional evidence, the Court may strike out your application, and you will need to reapply.
If the Divorce is granted, it will become ‘final’ one month and one day after the hearing, and the Divorce Order will be available to download from the Court portal soon after that date.
Common Myths about Divorce
MYTH: Divorce includes property settlement and parenting.
TRUTH: Divorce ends a marriage and invokes the 12-month time limit for property settlement.
MYTH: You need to be divorced before you can do a property settlement.
TRUTH: You can do a property settlement when you separate.
MYTH: You need to be divorced to change back to your maiden name.
TRUTH: You were born with your maiden name, you simply change back when you choose.
MYTH: You need to change back to your maiden name if you get divorced.
TRUTH: You can keep your married name for as long as you choose.
After Divorce: Next Steps
If you have not resolved financial and property settlement matters with the other party, you must apply to the Court within 12 months from the date the divorce becomes final.
FJS Lawyers can help, and it is best to seek legal advice early, to allow time for negotiations and attempts to settle by agreement. You should also consider whether parenting arrangements need to be formalised by way of orders, however, this is not mandatory, and many parents have informal co-parent arrangements which work well for them.
You should consider updating your will, superannuation, and insurance after a divorce.
Reach out early for legal advice – Contact FJS Lawyers to get started now!
Resources & Links
These resources can guide you through the divorce process:
Divorce- Federal Circuit and Family Court of Australia
Divorce- Legal Services Commission, South Australia
FJS Lawyers is Here to Support You
Divorce is a significant life transition that can feel overwhelming at times. While the steps may look straightforward, the reality is that even small mistakes can cause delays, added costs, or unnecessary stress. That’s why having the right support matters. At FJS Lawyers, we help clients navigate divorce with clarity and confidence.