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Applying For Divorce In Australia

What is Divorce?

Divorce is a 'legal severance' of marriage. That means once the Divorce Order takes effect, your marriage (which is the subject of the Divorce Order) is no longer. Divorce becomes final at the expiration of 1 month and 1 day from making the divorce order.

Who Can Apply For Divorce in Australia?

A person who is 'validly married' to another person can apply for divorce. (If a person's marriage is not recognised as 'valid', they can apply to the court for a decree of annulment of marriage. A marriage may not be valid, for example, where it was the result of coercion or fraud, etc.)

 

A few Important Points To Note Regarding Divorce

  • You do not need to prove faults on your spouse's part to get a divorce. You only need to show the court that your marriage has 'irretrievably broken down'. 

  • Your spouse does not need to agree to the separation. However, you must have told your spouse that you consider the marriage is over.

  • You must be separated for at least 12 months before applying for Divorce.

Will You Need To Attend Court For Divorce Application

  • If there are children under 18, you will have to attend the court.

  • If you are the sole divorce applicant and there are no children under 18, you are not required to attend the court. However, if your Divorce application is defended by your spouse, your attendance at the hearing may be required by the court.

  • If you have made a joint divorce application, you and your spouse are not required to attend the court.

Divorce Applicationi | Applying for Divorce in Australia | Family Lawyer, Melbourne | Ahmad Legal And Migration Services

Applying For Divorce In Australia

Generally, applying for divorce is not a complicated process for most married couples. You can apply to the Federal Circuit and Family Court of Australia (FCFCOA) for a divorce order by yourself (as a 'sole applicant') or together with your spouse ('joint application') if your spouse is willing to cooperate. An Application for Divorce can be made online, for instance, through the Commonwealth Courts Portal, or through eCourts Portal if you live in Western Australia.

If you apply for a divorce as a sole applicant, you must 'serve' a copy of your application with supporting documents on the other party (i.e., your spouse). However, you must NOT serve them by yourself. You may seek the assistance of an adult friend, colleague, neighbour, or process server (if you are willing to pay their fees). Please read the 'How Do I Serve A Divorce Application' guide for more information.

Married For Less Than Two Years?

If you have been married for less than two years, you will be required to show the court that you have made genuine efforts to resolve your differences with your spouse and attempted to salvage your marriage through mediation and other dispute resolution methods. You can satisfy this requirement by filing a Counselling (Section 60I) Certificate with the court.

 

*The two-year period is calculated from the date of your marriage to the date of your application for a divorce.

You can obtain a Section 60I Certificate after you have attended a counselling session, for example, with an authorised marriage/relationships counsellor. In addition, you can contact Relationships Australia or the Family Relationships Advice Line to seek more information about counselling and to arrange the counselling session(s).

Overseas Marriages and Divorce In Australia

You can apply for a divorce order even if your marriage was solemnized overseas if either your spouse or you:

- are an Australian citizen

- are a permanent resident of Australia and intend to live permanently in Australia

- have lived in Australia for 12 months immediately before applying for a divorce order.

You must provide a marriage certificate in order to prove your marriage. If your marriage certificate is not in English, you must provide the court with an acceptable translation of your marriage certificate and the original. You will also need to provide an affidavit from the translator.

Living Under The Same Roof After Separation?

If you believe that your marriage has irretrievably broken down, but you are still living together or have lived together within 12 months period before applying for divorce, then you will have to prove to the court that you were genuinely separated even though you were living together under the same roof. This situation is also referred to as 'separation under one roof'.

 

Proving separation under one roof may not be straightforward in every case. If that applies to you, you must consider seeking professional legal advice and assistance.

Other Things To Consider When Applying For Divorce In Australia

It is always advisable that an applicant for divorce must seek professional legal advice before applying for a divorce. This is because there may be many other potential issues that may be relevant but not obvious to an applicant. For instance, legal advice is highly recommended where:

  • there are under 18 children.

  • disputes may arise regarding property and financial issues at a later stage.

  • there is a Will in place, etc.

Have Under 18 Children Of Marriage?

Where there are under-18 children of the marriage, the court will not make a Divorce Order until it is satisfied that proper arrangements have been made for the 'care, welfare, and development' of the children.

Worried About Your Safety When Attending The Court?

  • Speak to the relevant court staff before your hearing date and discuss your concerns regarding your safety and security. Courts can make arrangements to ensure your safety. 

Relevant Provisions Governing Divorces in Australia

  • Family Law Act 1975 (Cth) (Part VII):

    • Section 48: Sets out the ground for divorce (irretrievable breakdown of the marriage and 12 months separation).

    • Section 49: Addresses the circumstances where separation occurs under the same roof.

    • Section 50: Addresses the effects of resumption of cohabitation after separating.

    • Section 55: Deals with the court’s power to make a divorce order and the time when it takes effect.

Need to Learn More About Divorce in Australia?

The Federal Circuit And Family Court of Australia provides very helpful detailed information, checklists, and a Divorce Kit on its website regarding applying for divorce.

Warning! No information provided on this website in relation to Australian laws, policies, procedures, directions (or any other matter) is intended to be legal advice. You must seek legal advice on issues specific to your situation and circumstances. Please read our Terms and Conditions.

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