In Australia we have no fault divorce. This means that, regardless of the reason why your your marriage has ended, there is only ground for divorce – irretrievable breakdown of marriage.
To prove irretrievable breakdown of marriage you must demonstrate to the Court that:
- you and your spouse have been separated for at least 12 months; and
- there is no reasonable likelihood that you will get back together.
If you have children under 18 years of age the court will only grant your divorce if it is satisfied that proper arrangements are in place for those children.
The legal requirements and procedures for divorce are found in the Family Law Act 1975 and the Federal Circuit Court Rules 2001.
If you have been separated for a least 1 year and there is no hope of reconciliation you may file an application in the Federal Circuit Court applying for a divorce.
Applications for divorce can be made;
- by one party filing the application with the court and serving it on the other spouse; or
- jointly with both spouses signing the application asking the court to dissolve their marriage.
When the divorce application is filed with the court it will be listed for a hearing date at which time the court will read through the filed documents and determine whether it is satisfied that the divorce should be granted. There are some circumstances where you may not need to attend Court on the day of the divorce but you must appear if:
- You are the sole applicant; and
- You and your spouse have children under 18 years of age.
You can apply for a divorce in Australia, even if you were married overseas provided that you or your spouse:
- regard Australia as your home and intend to live here indefinitely; or
- are an Australian citizen by birth, descent or Grant of Citizenship; or
- ordinarily live in Australia and have done so for 12 months immediately before filing the Application for Divorce.
There is no substitute for specialised family law advice so if you have questions about separation or want to know your legal position please feel free to book a confidential appointment. We can assist you at all stages of the process, regardless of the path taken. Our lawyers provide advice based on the relevant facts and the individual needs of each client. No two cases will be the same.
For answers to frequently asked questions about divorce go to our FAQ page.