Dissolving the marriage

Who can apply for divorce?

To apply for divorce in Australia, either you or your spouse must answer yes to one of the statements below. Please note that the fact you were married in Australia is not grounds enough to apply for divorce in Australia:

• regard Australia as your home and intend to live there indefinitely (you must be in Australia lawfully);
• are an Australian citizen by birth, descent or grant.
• ordinarily live in Australia and have done so for the 12 months prior to applying for divorce.

Note that additionally, you must be able to satisfy the court that you have been separated for at least 12 months and are not likely to resume married life.

Grounds for divorce

There is one ground for divorce in Australia, that being irretrievable breakdown and this is evidenced by a 12 month separation period. This usually means the establishment of two separate households. Fault such as adultery, cruelty etc are not relevant to this issue. Section 48 of the Family Law Act sets this out.

Marriages of less than 2 years duration

If it is less than two years between the date of marriage and the date of filing the divorce application, then there is a requirement that you and your ex-partner attend counselling to show that you have considered reconciliation. This counselling is compulsory.

The counsellor will provide you with the Counselling Certificate for Applicants married less than two years (signed by an approved mediation or counselling agency) to show that you have attended counselling or mediation in compliance with this requirement.

If there are special circumstances that make mediation impossible or inappropriate, you need to advise the Court and seek that this requirement be dispensed with.

Separation

You and your spouse must have lived apart for one year before applying for divorce. The divorce application can only be sworn the day after the anniversary of the 12 months separation.

Separation begins the day at least one of the parties considers the marriage to be over and communicates this to the other party. It is usually sufficient if it is stated in the Application for Divorce that a party started living with someone else, has been in receipt of the Parenting Payment, or where contact was not maintained by regular correspondence or visits.

Parties are separated when they stop living as husband and wife. This can happen when one party moves out of the former matrimonial home or the parties can be separated under the one roof provided certain requirements are met and you can establish to the Court that you both live separate lives.

To prove that you have been separated under the one roof you will need an affidavit from at least one independent witness who can testify as to your living arrangements. You will also need to file an affidavit providing evidence as to such arrangements.

If the separation is disputed, the court compares your living arrangements before separation to after separation. For example, the court looks at things which may go to make up the marriage like:

• sleeping arrangements;
• performance of household services;
• absence of shared activities;
• parties ceasing to hold themselves out as a couple;
• lack of sexual relations between the parties;
• the financial arrangements of the parties.

Should a couple wish to try and save their marriage, they can attempt reconciliation for up to three months without having to start the 12 month separation period again.  If the reconciliation period is longer than three months, or there are several significant attempts at reconciliation, you may have to start the 12 month period again.  Legal advice should be sought on this point.

Step 1 - Applying for Divorce

There are two ways to apply for the divorce:

Sole Application:

Either the husband or wife, known as the Applicant, can apply for the divorce. All questions on the form must be answered, however if you have made attempts to find the answer to questions regarding your spouse but can’t, insert the phrase `not known` instead.

Joint Application:

Alternatively a joint application can be submitted. If both parties are cooperative, this is the best and simplest way to obtain a divorce. There is only one document to complete and no need to serve papers on the other party, as both parties fill the in the Application for Divorce and sign it.


To begin the divorce process, the Applicant does the following:

Normally your case is listed for a hearing at the location where the Application for Divorce is filed, however you can ask for this to be changed to a circuit location visited by the Court.

Step 2  - Receive Hearing Date and Details

The Court will stamp your application, give you a file number and a date and time for a hearing. They will keep the original Application for Divorce.

For joint applications, the court will give both spouses a sealed copy of the application and an information brochure called ˜Marriage Families & Separation.

For sole applications, the Applicant is given two copies of the sealed application and the information brochure ˜Marriage Families & Separation. The Applicant must then serve a sealed copy of the Application for Divorce on their spouse within these time frames:

• at least 28 days before the hearing date if the spouse is in Australia OR
• at lest 42 days before the hearing date if the spouse is overseas.

Step 3  - Attending the Hearing

If there are no children under 18, neither spouse has to attend the Hearing.

If a joint application was made and there are children under 18, neither spouse has to attend the Hearing.

If a sole application was made and there are children under 18, the Applicant must attend the Hearing at the time and date given.  You can apply to the Court to appear by telephone under certain circumstances.

Step 4  - Outcome of the Hearing

At the hearing, if the court grants the divorce, it will issue a divorce order. After one month and one day, this order will take legal effect and becomes final.  The Court then sends a Certificate of Divorce to both spouses or their lawyers.

It is possible to shorten the time it takes for the divorce order to become final in certain circumstance by order of the Court.

The granting of the divorce does not decide issues about parenting arrangements and finances.  This must be done separately.  If you wish to apply for maintenance or division of property, this must be done within 12 months of the date the divorce becomes final otherwise permission of the Court will be needed to apply.