Application for Divorce when Overseas
Many people believe that if they currently reside overseas, they are unable to file for divorce in Australia. This is not necessarily the case.
In order to apply for divorce in Australia, either the applicant or their spouse must:
- Regard Australia as home and intend to live indefinitely in Australia as an Australian citizen or resident;
- Be an Australian citizen by birth or descent;
- Be an Australian citizen by grant of Australian citizenship; or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Further, the parties must also satisfy the Court that they have been separated for at least 12 months. This is a requirement for divorce in Australia.
The applicant must provide the Court with a copy of the marriage certificate. If married overseas, the overseas marriage certificate will need to be translated into English by a registered translator.
There are two types of divorce applications that can be made in Australia; a sole application or a joint application. A sole application is where either spouse applies for divorce. A joint application is where both parties to the marriage apply for divorce.
Once a divorce application has been prepared, the applicant will be required to swear or affirm that the facts and circumstances set out in the application are true.
If the applicant currently reside overseas, he or she can swear or affirm their affidavit (a written statement) before one of the following:
- Notary public who is exercising their function in that country; or
- An Australian Diplomatic Officer or an Australian Consulate Officer; or
- A commissioner of the High Court of Australia who is authorised to administer oaths or affirmations in that country; or
- A commissioner of the Supreme Court of a State or Territory for taking affidavit who is empowered and authorised to act in that country.
If a party to a marriage is making a sole application for divorce and there is a child or children of the marriage under the age of 18 years, the applicant or his or her solicitor will be required to attend the hearing. Joint applications do not require attendance at the hearing.
At the hearing, the Court will issue an order for divorce. After one month and one day, the divorce order will take legal effect and become final.