Separation can be a stressful time. Every month, we help hundreds of people from all over Western Australia access the information and advice they need to know when they separate. This page is designed to answer our most frequently asked questions about divorce.
Please note that you can eLodge your divorce application using the eCourts Portal. Further information on eLodgment can be found on the Family Court of WA website or on our fact sheet about eLodging court documents.
You may also need to think about children’s matters and property if they apply to you.
Frequently Asked Questions
A divorce application is an application made to the Family Court of Western Australia to finalise the end of a marriage that’s broken down irretrievably (beyond repair) with no possibility of reconciliation (getting back together).
You and your spouse can apply for divorce together (a joint application) or you can apply by yourself (a sole application).
There’s only one ground for divorce: that your marriage has broken down irretrievably and you’re unlikely to reconcile and you have been separated for one year and one day..
No, there’s no need to prove fault. In Australia divorce is on a “no-fault” basis.
The only proof the Family Court needs is that you and your spouse have separated, you’ve lived separately and apart for a continuous period of 12 months and one day immediately before the date of filing the application, and there’s no chance you’ll reconcile.
If my partner and I reconcile and separate again, can my first period of separation be taken into account?
Yes, it can be taken into account in certain circumstances. You should get legal advice if this applies to you.
My spouse and I are separated but we’ve been living under the same roof. Can we still get a divorce after 12 months of separation?
Yes, you can, but you need to prove that you’ve separated.
If you are making a joint application, you need an affidavit from an independent third party, and also an affidavit from yourself and another from your spouse. If you are making a sole application you need two affidavits — one from you and the other from a third party. An affidavit is a written and sworn statement of something that can be used as evidence in court.
You also need to provide certain evidence of your separation to the Court. This could include that both of you:
- Sleep in separate bedrooms;
- Have ceased intimacy and sexual activity;
- Have separate bank accounts and finances;
- Don’t do things around the house for each other;
- Act in such a way that people in your everyday life such as friends, family members, neighbours, and employers can tell that you’ve separated, and your marriage has ended;
- Don’t attend social activities together; or
- Don’t socialise or entertain together in your home, for example, host friends for dinner.
In Australian divorce law, a marriage of fewer than two years is called a “short marriage”. The two year period is calculated from the date of your marriage to the date of your application for divorce. If you had a short marriage, then before you can apply for divorce you’re required to attend counselling with your former spouse to discuss if there’s any possibility of reconciling. Your counsellor must be a professional who’s able to issue an Attendance at Counselling Certificate. The Court needs this certificate before it will grant you a divorce.
If you can’t attend counselling, you have to file an affidavit seeking the Court’s permission to apply for a divorce. In your affidavit you need to explain:
- Why you and your spouse haven’t attended counselling. If your spouse has refused to attend, you should explain your attempts to invite them to attend. If you can’t find your spouse, you should explain how you’ve tried to locate them; and
- Any special circumstances of your case, for example, if there’s a history of violence or abuse in your marriage and it’s not safe for you to attend counselling with your spouse.
Both of you have to complete Form 3. Refer to our fact sheet on eLodgment of court documents. You and your spouse have to appear before a Justice of the Peace and swear that all of the information you’ve provided is true. You can have Form 3 witnessed together or separately. Refer to our fact sheet on eLodgment of court documents. You then need to scan and upload the documents following the prompts.
- You have to complete Form 3, providing all of your personal details and as much information of your spouse as possible. You must provide an address of your spouse. If you do not know your spouse’s whereabout, get legal advice.
- You have to appear before a Justice of the Peace and swear that all of the information you’ve provided is true. • You then need to scan and upload the documents following the prompts. Then you need to download the stamped Form 3 to be served on your spouse.
- You should find another adult such as a family member or a friend to serve the documents on your spouse. You can also use a process server to do this. Once the other party has been served, the server has to complete the Form 7, specifying the date, time, and place where your spouse was served, and sign to it before a Justice of the Peace.
- The server returns Form 7 to you. The server may also return the Form 6, signed by your spouse to say that they have received Form 3.
- You must swear an affidavit to say that the signature on Form 6 is that of your spouses.
- You then have to scan and upload the Forms 6 and 7 and your Affidavit of Proof of Signature.
Yes, you can, but it’s not advisable if you think that your spouse might not complete and return the Form 6.
You need to complete the Family Court’s Form 3 – Application for Divorce.
You only have to attend court if:
- You have made a sole application and there are children of the marriage aged under 18; or
- You have lived under the same roof during the required 12 months period after separation.
The Court needs to be satisfied that your children are spending time with the parent they’re not living with.
If there aren’t any issues with serving the documents on your spouse, then your divorce will be finalised one month and one day after the court date specified on your Form 3. The Court will issue a Certificate of Divorce Absolute to you. It’s only once you have this certificate that you are free to re-marry.
Yes, you can. The only objection is if parties have not been separated for one year and one day before filing the application. You need to complete Form 3A.
You can file Form 2 and an affidavit. The other option is to attend court on the date listed and make a verbal submission to the court rectifying the errors.
If you’re separated and need to get divorced, it’s a good idea to make an appointment to get some legal advice from a Citizens Advice Bureau lawyer who can advise what you need to do and help with preparing a Form 3 (Application for Divorce).
You can download a divorce kit or eLodge an application for divorce from the eCourts Portal website. You can find more information about eLodgment on our fact sheet about eLodgment of court documents.