Divorce

Obtaining a divorce is the legal end to a marriage. It’s important to note that divorce does not finalise any parenting arrangements or property settlement. You would generally apply for a divorce after all parenting and/or financial matters have been resolved.

The divorce process is relatively straightforward and in fact, many people don’t engage lawyers to do their divorces unless there’s some complexity to their matter.

An application for divorce can be made by either party or jointly.

Grounds for divorce

To apply for a divorce, you must prove that:

1. you are married (by providing a marriage certificate); and
2. you have been separated from your husband/wife for at least twelve months and one day; and
3. your marriage has broken down and there is no reasonable likelihood that you will get back together; and
4. one of you have ties to Australia (i.e. citizenship, permanent residence or domicile).

Separation under one roof

You can still apply for a divorce if you and your husband/wife have been or are living in the same household.

There are some extra steps and documents that need to be produced including the filing of an Affidavit from an adult third party who has firsthand knowledge of the separation under one roof.

Resuming cohabitation

In order to apply for a divorce, there must be a separation period of at least 12 months. However, the 12-month period does not necessarily need to be continuous.

The law allows you to resume cohabitation for a period of up to three months without annulling the prior period of separation for the purposes of building up 12 months separation. In order to determine whether a period of resumption of cohabitation will affect your overall period of separation, the following conditions must all be met:

1. You must have initially separated.
2. You must not have resumed cohabitation more than once and for no longer than 3 months.
3. There must be a total period of 12 months separation.

If you have resumed cohabitation for three months or longer, you will need to restart the 12-month separation period.

Married for less than two years?

There are some additional requirements for couples who have been married for less than two years. This is sometimes referred to as a ‘short marriage’.

Before filing the application for divorce, the parties must attend counselling with a court-approved counsellor. The counsellor will then sign a certificate to confirm that the counselling has taken place.

You can sometimes obtain an exemption from the counselling if for example there has been family violence or if your husband/wife has moved overseas and you don’t know how to find them.

Property settlement when married couples separate

You can apply for a property settlement at any time after separation, however, once a divorce order has been issued, you will only have 12 months to make an application to the Court.

After that time, any application for a property settlement or spousal maintenance can only be made if:

• your ex-partner agrees; or
• with permission from the Court if certain grounds are satisfied.

That’s why we tend to encourage resolving all financial matters before applying for a divorce unless there’s a strategic reason to divorce first.

Procedure for obtaining a divorce

Applications are processed online these days. The Family Court of Australia has a Divorce Service Kit which you can access here.

The application process is as follows:

1. The forms are completed, signed and filed with the Court and the Court will allocate a hearing date.
2. The completed forms are served on your husband/wife at least 28 days prior to the hearing date.
3. If your husband/wife wishes to file a Response to the Divorce, this must be filed within 28 days after service of the Divorce.
4. Regardless of whether a Response is filed, the hearing will proceed on the allocated date.
5. If there are children, you or your lawyer must attend court on the hearing date. The hearing is generally straightforward.
6. One month and one day after the divorce is granted, Divorce Orders will be issued by the Court.

Annulment of marriage

In contrast to obtaining a divorce, it is difficult to have a marriage annulled (made void) and it’s not a common application in Australia.

The Family Court will only make a declaration that a marriage is null and void in very limited and rare circumstances. These circumstances include bigamous marriages and where the consent of a party to a marriage was obtained by fraud or under duress.