Applying for a divorce in Australia

Grounds of Divorce

Under the Australian law, the only basis of making an application for a divorce order is based on irretrievable break down of the marriage. Section 48(2) of the Family Law Act 1975 provides that such ground will be established, and a court will grant a divorce if it is satisfied that parties have separated and lived separately for a continuous period of more than 12 months. However, if there is a reasonable likelihood of cohabitation being resumed between the parties, the court will not consider the marriage to be broken down irretrievably and not grant a divorce.

Prior to 1975, the making of a divorce order required that at least one party had engaged in some serious misconduct such as adultery, violence, habitual drunkenness etc and was at fault for the breakdown of the relationship. This was not only expensive for the parties to prove but failed to reflect the changing social attitudes towards relationships. The current law of ‘no fault’ divorce only requires the parties to demonstrate that they have been separated for more than 12 months and there is no likelihood of resuming cohabitation.

Eligibility

To be eligible to apply for a divorce in Australia, you or your spouse must either:

• Be an Australian citizen; or

• live in Australia and think of Australia as your permanent home, or

• usually live in Australia and have done so for at least 12 months before the divorce application. 

You will also need to provide the marriage certificate when making the application for a divorce.

How to apply for a Divorce

You and your spouse can apply for a divorce together (joint application) or on you can do it on your own (sole application). If you decide to apply for a divorce yourself, you will need to make an application to the Federal Circuit and Family Court using the Commonwealth Courts portal.  

At the end of the application, you will be prompted to select a court date for a hearing. If you are making a joint application, there is no need to attend this hearing. However, you will need to attend the hearing in the following circumstances:

• If you have filed a sole application and there is a child of the marriage aged under 18 years at the time of filing; or

• If you have indicated that you wish to attend in the application; or

• If either party has objected to the divorce being heard in the absence of the parties, or

• If the respondent files a Response to divorce opposing the application.

If you are making a sole application, your partner does not have to agree to the divorce, however, they will need to be served with the divorce application. This means that your ex-partner must be given the divorce documents so that they know about the court proceedings.

Once the divorce is granted on the hearing, you will be able to download the divorce order from the Commonwealth Courts portal after one months and one day.

 ‘Under one roof’ separation

We often get many cases where parties have separated but are living under one roof as a result of various circumstances. It is possible to get a divorce in such a situation as long as the marriage has broken down broken down irrevocably and separation is longer than 12 months.

In deciding whether you separated ‘under the one roof’ the court will consider:

• Your residential arrangement

• Whether you engage in sexual activity with your ex-partner

• Changes in childcare and division of domestic duties

• Whether you share money and bank accounts

• Whether your friends and family think of you as separated.

However, as indicated by the court In the Marriage of Pavey (1976) 10 ALR 259, the court require evidence that goes beyond ‘inexact proofs, indefinite testimony and indirect inferences’.  Therefore, in such circumstances, you will need to file supporting affidavits for yourself and a witness.

An experienced family lawyer can help you prepare these affidavits which would include information on the changed in the marriage since your separation.

Marriage less than 2 years

Under section 44 of the Family Law Act 1975, you can only apply for a divorce if you have been married for less than two years if you have considered a reconciliation, with the assistance of a family counsellor and have a certificate confirming this.

 However, section 44 (1C) (a) creates an exception to this rule and states that if there are any special circumstances such as family violence or if you can’t locate your spouse, you may make an application to the court without having attended counselling.