Deciding to end a marriage is difficult enough. The legal process that follows should not add unnecessary confusion on top of that. In Western Australia, the divorce process has a set sequence of steps, and knowing what each one involves helps you move through it with confidence. Whether you engage divorce lawyers in Perth to manage the process or handle parts of it yourself, understanding the procedure is the starting point.
Divorce in WA: The Legal Framework
Divorce in Australia is governed by the Family Law Act 1975 (Cth). It operates on a no-fault basis, which means the court does not consider who was responsible for the breakdown of the marriage. There is only one ground for divorce in Australia, and that is that the marriage has broken down irretrievably. This is demonstrated by at least 12 months of separation.
In Western Australia, divorce applications are filed with and heard by the Family Court of Western Australia, located at 150 Terrace Road in Perth. This is distinct from the Federal Circuit and Family Court of Australia, which handles divorce in every other state and territory. WA operates its own court system for family law.
Step 1: Confirm Separation
The 12-month separation period is the starting point for any divorce application. The date of separation is the day you stopped living together as a married couple. This does not have to mean one person physically moved out of the home. It is legally possible to be separated under the same roof, provided you can demonstrate that the marital relationship genuinely ended.
Evidence that supports separation under one roof includes sleeping in separate rooms, separating finances, not socialising as a couple, and informing family or friends about the separation. Courts look at the overall picture rather than any single factor.
If you reconcile and then separate again, a reconciliation period counts only if it lasted at least three months. Short reconciliation attempts of less than three months do not reset the separation clock.
Step 2: Prepare the Application
A divorce application can be filed as a sole application, by one spouse, or a joint application, by both spouses together. Joint applications are simpler in terms of paperwork and do not require a court hearing unless the parties choose to attend one.
The application involves completing the required court forms, available through the Family Court of WA’s registry or the eCourts Portal. You will also need to provide your original or certified marriage certificate. If the marriage occurred overseas, a certified translation of any foreign-language certificate is required.
For marriages lasting less than two years, the court requires evidence that you have attempted to attend marriage counselling, or a statement explaining why counselling was not possible or appropriate in your situation.
Step 3: File and Pay the Fee
Once the forms are complete, you file the application with the Family Court of WA. A filing fee applies. The fee is reduced for holders of a health care card or pension concession card, and fee waivers are available in cases of financial hardship. The court issues a sealed copy of the application once it is accepted.
For sole applications, this sealed copy must be formally served on the other spouse. For joint applications, both parties have already agreed to the process, so service is not required in the same way.
Step 4: Serve the Other Party
In a sole application, the other spouse must be formally served with the sealed documents. You cannot serve the documents yourself. Service must be carried out by someone over 18 who is not a party to the application. A professional process server is commonly used to make this straightforward and provable.
Once service is complete, the person who served the documents fills out an Affidavit of Service. This is then filed with the court as proof that the other party received the documents and is aware of the proceedings.
If the other party cannot be located for service, there are options available, including applying for substituted service or dispensation of service. A lawyer can advise which is appropriate in your circumstances.
Step 5: Attend the Hearing
For sole applications, a court hearing is scheduled. If there are children under 18 from the marriage, the applicant must attend the hearing in person. In joint applications without children, attendance is not required and the matter is determined on the papers.
The hearing itself is typically brief. The court confirms that the application is in order, that 12 months of separation have passed, and that any arrangements for children are appropriate. It does not involve argument or evidence about why the marriage ended.
Step 6: The Divorce Order
If the application is granted, the court makes a Divorce Order. The order does not take effect immediately. It becomes final one month and one day after it is made. This cooling-off period allows for any last-minute applications to set the order aside.
Once the order is final, either party can obtain a Divorce Certificate from the court. This document confirms the marriage has legally ended and is required for administrative purposes such as remarriage.
What Divorce Does Not Resolve
Divorce ends the marriage. It does not automatically resolve property settlement or parenting arrangements, and this distinction catches many people off guard.
- After a divorce is granted, you have 12 months to file for property orders with the Family Court of WA.
- After that time limit passes, you need the court’s permission to bring a property claim.
- Permission is not guaranteed, and missing this deadline can significantly limit your options.
- Parenting arrangements are a separate process that can be made before, during, or after divorce proceedings.
When to Get Legal Help
Many straightforward divorce applications can be managed without a lawyer, particularly joint applications with no children and no complications. Legal advice becomes valuable when there is disagreement about the date of separation, difficulty locating the other party for service, uncertainty about the short-marriage counselling requirement, or questions about how divorce affects your property settlement deadline. Divorce lawyers in Perth can handle the full process on your behalf or advise on specific parts you are uncertain about.