No Fault Divorce Explained by Our Divorce Lawyers in Geelong
Understanding the legal framework surrounding divorce is a key step in navigating this significant life transition. In Australia, the concept of ‘no fault divorce’ underpins this process, focusing on the reality that a marriage has simply come to an end. At Cornish Lawyers, we understand this can be a challenging time, and this blog post aims to clarify what ‘no fault divorce’ actually entails and provide you with a clear understanding of how to proceed with a divorce application in Australia. We’re here to help guide you through this process with clarity and support, especially if you are seeking a divorce lawyer in Geelong.
What Is A No Fault Divorce?
Since 1975 when the Family Law Act was implemented, Australia has had a ‘no fault divorce’ system. This means that when a married person no longer wishes to be married they can obtain a divorce without needing to demonstrate that one party is at ‘fault’ or responsible for the breakdown of the marriage.
Prior to the implementation of the Act, a party to a marriage would need to demonstrate that there was a specific reason for wanting a divorce such as adultery, insanity (as it was then called) or abandonment. No Fault Divorce was introduced to reduce unnecessary conflict and to make obtaining a divorce easier and more equitable.
How do I get divorced?
Anyone can apply to divorce in Australia provided you meet the following criteria:
- You have been separated from your spouse for at least twelve months;
- You have been married for at least two years OR you have attended marriage counselling and obtained a certificate allowing you to apply for divorce;
- Either you or your spouse were born in Australia, live in Australia or have resided in Australia for the last twelve months.
For those specifically looking for a family lawyer in Geelong to navigate these criteria, Cornish Lawyers offers dedicated services.
The application form, called an Application for Divorce, can be filed online through the Commonwealth Courts Portal. You will be prompted to complete the form, to upload a copy of your marriage certificate, and to upload any further evidence required by the court (for example evidence of citizenship or residence or evidence of marriage counselling).
After the form is completed you will be prompted to pay a filing fee to the court. This is $1100 as at June 2025 and free for concession card holders. Thereafter you will be able to nominate a court date on which your divorce is to be heard by the court and you will be able to print off sealed copies of your divorce application so that your former spouse can be served with them. If you wish for your divorce to be heard in Geelong rather than Melbourne you can seek a listing in the Geelong circuit.
How do I serve my spouse?
There are two permitted ways to serve your spouse with an Application for Divorce. They are:
- By registered post;
- Personal service.
If you choose to serve your spouse by registered post you must post the Application for Divorce form along with an Acknowledgement of Service and request that your spouse return the Acknowledgement of Service to you. This is a good option if you know where your spouse is living and you think that they will return the paperwork to you. If you require assistance with this step, our solicitors in Geelong can provide professional guidance.
Personal service involves engaging another person to personally hand the documents to your spouse. In most cases the server will be a process server. If you engage a process server, the process server will attend at your spouse’s home or work and hand them the paperwork. They will then ask them to sign the Acknowledgment of Service document and will return it to you along with an Affidavit of Service confirming that they served your spouse. If your spouse refuses to sign the Acknowledgement of Service then the process server will note this in their own affidavit which should be sufficient evidence for your divorce to be granted.
You cannot personally serve your spouse with divorce documents. For guidance on the correct procedures, it’s advisable to consult with our divorce lawyers.
Do I Have To Get Divorced?
A divorce order legally severs a marriage. It does not, however, divide the property of a marriage or determine where and with whom children of the marriage will live. In order to do this, parties will need to obtain parenting orders and/or a property settlement. Our property lawyers in Geelong can advise on these matters.
If you separate but do not divorce, either spouse can make an application for a property settlement long after the relationship has ended. Any property settlement may take into account assets accumulated after the marriage has broken down. If your former spouse finds themselves struggling financially, they may be able to make an application for you to pay them spousal maintenance many years after separation.
If you divorce and have not done a property settlement, in most cases, a party will only have one year from the date of divorce in which they can start property settlement proceedings. Thereafter, a property settlement can only take place where both parties agree or with the permission of the court
For this reason, it is always our advice to get divorced and to ensure that property matters are finalised on or before that time with the assistance of a property lawyer in Geelong.
Do I Have To Go To Court?
There are different rules regarding whether you need to attend court, depending on whether there are children under eighteen years of age and if service has been properly completed.
Typically, where one party has applied for divorce and the other has been correctly served, and where there are no children, neither party will be required to attend court in order for the divorce to be granted.
Where there are children under the age of eighteen, the applicant to the divorce will be required to attend a court hearing even where service has been completed correctly. This is so that the court can ensure that some care arrangements are in place for the children of the marriage, a matter our family law Geelong team understands well.
What Happens At Court?
Most of the time, divorce hearings are a quick and administrative process. A Judicial Registrar will review the Application for Divorce form, the marriage certificate and any documents relating to service to determine whether they are able to grant the divorce. If they are, they will make an order for divorce, which will become finalised a month and one day after the court date. If not, the court will explain to you what additional information they require in order to grant the divorce or why it is that they are not able to give you a divorce.
Seeking a Divorce Lawyer in Geelong? Let Us Help!
Navigating divorce can be challenging. For expert legal support and guidance through your application and any related family law concerns, please contact our divorce lawyers in Geelong today. We also provide services in Torquay and Hoppers Crossing, with virtual consultations available for your convenience. Let our experienced team help you navigate this transition smoothly.