A divorce is the legal termination of your marriage. To obtain a divorce in Australia, you must satisfy the court that there has been an irretrievable breakdown of your marriage. This is automatically proved if you and your spouse have lived separately for a period of at least 12 months.
Before preparing your Divorce Application you should seek legal advice about your rights and responsibilities, as well as the impact of obtaining the divorce on your overall financial circumstances. We can provide this advice and assist you to prepare your Divorce Application.
When can I apply for a divorce?
You can file an Application for Divorce after you and your spouse have been separated for 12 months.
If you and your spouse have been married for less than 2 years, this is called a ‘short marriage’ and you will be required to attend counselling. If you do not wish to attend counselling, you will need to prepare and file an affidavit setting out the reasons why counselling should be waived and the Divorce Order made.
What if we are separated but still living under the same roof?
If you and your former spouse have separated but continue to live under the one roof, then you will need to file a supporting affidavit, showing that whilst you and your spouse live in the same home, you have separated. You may also need to file an additional affidavit by a supporting witness, such as a family member, friend or neighbour, who can confirm your separation.
How do I apply for a divorce?
By filing an application in the Federal Circuit Court of Australia.
You and your spouse may make the Application together (known as a "Joint Application"), or you may make the Application by yourself (a "Sole Application").
If the application is made jointly, then you will not need to prove to the court that it has been served on the other party. You may also agree to share the filing fee costs with your former spouse.
The Federal Circuit Court of Australia has a "Divorce Service Kit" available online which contains useful information about applying for divorce, the filing fees involved and information to assist you to complete the application.
I have been served with an Application for Divorce. Do I have to agree with it?
Australia is a 'no-fault' jurisdiction. This means that when granting a divorce, a court does not consider which partner was at fault in, or caused the marriage breakdown.
When a Divorce Application comes before the court, it will grant the Divorce Order if:
you and your spouse were validly married;
you meet the residence requirements to have the court deal with your matter;
you have been separated for 12 months or more; and
you have validly been served with the Divorce Application.
If you are served with a Divorce Application and there are any errors in it, you should obtain legal advice about preparing a response or an affidavit which identifies those errors for the court.
Do I have to be an Australian citizen to get a divorce in Australia?
You do not need to be a citizen but you do need to have a sufficient connection with Australia, such as Australian citizenship or permanent residence in Australia.
If you were married overseas, you can apply for a divorce in Australia. In those circumstances, the marriage certificate you supply as evidence of marriage must either be in English or translated into English.
Do I have to attend the Divorce hearing?
If there are no children of the marriage under the age of 18 years then you do not have to attend the court hearing. This applies whether the Application for Divorce was applied for solely by you or jointly.
If you applied for the divorce and there are children under the age of 18, and the other parent does not consent, then you will need to personally attend the court hearing or arrange for a solicitor to attend on your behalf.
If you do not file an Application for property settlement within this 12-month period, then if the other party will not consent, you must seek permission from the court to commence property proceedings out of time. The court will only give permission (‘leave’) to commence the proceedings out of time in certain circumstances. It also costs more to make an application for ‘leave’, as well as start proceedings about property matters out of time.
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