Divorce

A Divorce is the legal termination of your marriage.

An Application for a Divorce Order is separate from proceedings about financial or parenting issues. To obtain a Divorce, you must satisfy the Court that there has been an irretrievable breakdown of marriage. This is automatically proved if you and your spouse have lived separately for a period of 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.

FAQs

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 (from the date of the marriage to the date of filing the Divorce Application.) Otherwise, you will need to prepare and file an Affidavit setting out the reasons why counselling should be waived and the Divorce Order made.

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 whilst you and your spouse have lived 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 neighbor, who can confirm this.

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's website 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.

Australia is a 'no-fault' jurisdiction. If you and your spouse were validly married, meet the residence requirements to have the Court deal with your matter, have been separated for 12-months or more, and have validly served the Divorce Application on the other party, when the matter comes before the Court, it will grant the Divorce Order. If you are served with a Divorce Application and there are any errors in it, you should obtain advice about preparing a Response or an Affidavit which identifies those errors for the Court.

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, then you will need to personally attend the Court Hearing or arrange for a solicitor to attend on your behalf. The Court must be satisfied that your arrangements for any children of the marriage are "proper" before it can grant Divorce.

A Divorce Order will end your marriage only. Arrangements for property and parenting must be dealt with separately.

However, once your Divorce Order has been made you must commence property proceedings withing 12-months from the date of the Divorce. If you do not file an Application for property settlement within this 12-month period, then you must then 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.

No limitation period applies if you need to begin proceedings about children. However other requirements do need to be met before you can approach a Court about children's issues.