Criteria to obtain a Divorce in Australia
Australia has a ‘no fault’ Divorce system. This means the only ground for a dissolution of marriage is the irretrievable breakdown of the marriage, evidenced by 12 months living separately and apart.
You cannot apply for a Divorce until after the 12 months has passed.
If your spouse has applied for a Divorce and you do not want it to be granted, the only ground on which you can object to it is if you say you have not been separated for at least 12 months. The Court will then consider the evidence.
If you separated then reconcile for periods, you have to have been separated for total periods of 12 months (so ignoring the periods when reconciled) before you can apply for a Divorce.
So, for example if you separate on 1 January 2015, reconcile between 1 July 2015 and 30 December 2015, you can apply on 1 July 2016.
Yes, this is called ‘separation under the one roof’.
There are strict criteria and we recommend obtaining legal advice as soon as you can after you separate if you are living in the same house to make sure you take the steps necessary to ensure your Divorce will be granted after 12 months.
Your application is filed in the Federal Circuit Court of Australia.
You can file the application online or we can assist you. If you have any unusual circumstances we recommend obtaining assistance with the Application.
If your spouse agrees, you can file a joint application which simplifies the process considerably.
Once the Application is filed, if it was not a joint application, it has to be personally served on your spouse. It cannot be posted and you cannot served it.
Usually we would engage a process server to serve the Application.
After service, documents have to be filed in Court to prove service.
If you have not filed a joint application and you have children under 18 – yes, you must attend.
Otherwise, you do not need to attend but may choose to do so.
You (and your solicitor if represented) will report in to the Court Officer.
You wait in the back of the courtroom and when called, approach the bar table. If you have a family lawyer, they will sit at the Bar table and you will sit behind. Otherwise you sit at the bar table.
There are rules of etiquette in Court:
– You stand when the Judge or Registrar is speaking to you
– No hats or sunglasses on heads
– No chewing gum
– No recording
– Mobile phones switched off or on silent
The Judge or Registrar will read the documents and may ask some questions. If you have a family lawyer, you will not have to speak.
If all the paperwork is correct, an interim Divorce Order will be granted.
Your family lawyer can check on the Commonwealth Courts Portal the day after the hearing, and advise you if it was granted. If you are representing yourself, you can check.
An interim Divorce Order remains in place for one month. This allows a period in case parties change their minds or wish to appeal the decision (This has not happened to us in 20 years of family law, but never say never…)
After the one month, the interim Order becomes a Final Divorce Order.
The court then processes the paperwork and it is posted out to you or your family lawyer. There can be delays in processing so if you need it urgently make sure the Court is made aware of that at the hearing.
You are not legally divorced until the final Divorce Order is made.
It’s a good idea not to book another wedding ceremony until you have your final Divorce Order, because the person officiating your marriage is required to see it.
There are some limited circumstances where the process can be hurried along. Contact us for specific legal advice about your situation.
Once you are divorced, there are some pretty significant legal consequences.
– you only have 12 months to apply for a property settlement or spousal maintenance under the Family Law Act
– your will is affected. The way it is impacted depends on which state you live in.
– you are no longer considered a spouse for the purposes of family provision claims, family trusts, superannuation, Centrelink etc.
We recommend all clients review their will, enduring power of attorney and superannuation beneficiaries on separation as otherwise, if your property settlement is not finalised and you pass away, your spouse could receive your entire estate.
If you do not have a will at all, it is even more important if you are separated to have one drawn up that reflects your wishes. If you have enough money to need a property settlement, you need a properly drafted will.
Contact us about having a will prepared.
Yes! Provided you were legally married overseas, if you are sufficiently connected to Australia, you can Divorce in Australia.
Generally speaking, if you live here permanently, you will be ok, but contact us to make sure you won’t have any problems.
Yes. You certainly can!!
Australians who were legally married under the laws of the place of marriage now have their marriages recognised.
That means you have a valid Marriage, so you can get a Divorce.
Remember that once you are divorced, you only have 12 months to apply for a property settlement or spouse maintenance.