A divorce formally recognises the end of a marriage. A Divorce Order is granted by the Court to officially dissolve the legal status of a marriage. The divorce process is separate to your property settlement and children matters.
The process is usually straightforward and involves filing an Application for Divorce in the Federal Circuit and Family Court of Australia. However, there can be complicating factors to a divorce.
Your former partner does not need to consent to a divorce but the marriage needs to be irretrievably broken down. You need to be separated for more than 12 months before you can obtain a divorce. There is also an additional requirement for marriage counselling if you are seeking a divorce within 2 years of being married. If you were married overseas but have been habitually living in Australia, there will also be additional factors to prove to the Court.
Where there are children of your marriage, the Court will also need to be satisfied that parenting arrangements are in place or there are satisfactory steps being taken to satisfy the Court that the children’s welfare has been considered.
However, you can separate and proceed with a property settlement or making arrangements for your children without first obtaining a divorce.
In 2017, changes to the Marriage Act enabled same-sex couples to marry in Australia. These changes enabled same-sex couples living in Australia to also obtain a divorce in an Australian Court regardless of where their marriage originated.
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What is divorce?
Divorce refers to the formal legal cessation of a marriage. However, this does not cover matters of property settlement, spousal financial support or parenting arrangements as these are distinct legal avenues. It’s also important to note that while some marriages do break down, divorce is not a necessity. It is possible to remain married while being separated. However, divorce is necessary if one or both of the parties intend to remarry. Choosing to remain married following separation, however, may carry certain legal obligations. As such, seeking legal advice is highly advisable before pursuing either course of action.
Can I apply for a divorce?
Divorce in Australia is a Family Law Matter, falling within the purview of the Family Law Act 1975. Therefore, to be eligible to apply for a divorce in Australia, you must first satisfy several criteria stipulated within the Act:
- Either you or your spouse must be an Australian citizen, or you or your spouse must have lived in Australia for 12 months prior to applying
- You and your spouse need to have been separated for 12 months
- You need to demonstrate that your marriage has ‘irretrievably broken down’
- Appropriate arrangements have been made to ensure that any child of your relationship will be cared for
For marriages of less than two years there is an additional legal requirement that you and your spouse attend a mediation session with a family counsellor in order to obtain a counselling certificate. In lieu of this, you may seek the court’s permission to apply for divorce by submitting an affidavit when filing your application.
Following the legalisation of same-sex marriage in Australia in 2017, same-sex couples now enjoy the same legal entitlements and requirements as heterosexual couples for the purposes of divorce, property settlement and child support arrangements. As such, married same-sex couples will have to satisfy identical criteria (12 months of separation, proving an irretrievable breakdown of the marriage, etc.) when applying for divorce in Australia.
Overseas same-sex marriages
Amendments made to the Family Law Act following same-sex legalisation has meant that all same-sex marriages officiated outside of Australia, before the amendments were implemented, are now legally recognised within Australia. Accordingly, any same-sex couple who married overseas prior to 2017 can apply for divorce within Australia.
How to get a divorce in Australia
Because divorce falls within the jurisdiction of The Federal Circuit Court and Family Court of Australia, you will need to eFile your application using the Commonwealth Courts Portal online form. You may prepare the online form by yourself, jointly with your spouse, or you may solicit a divorce lawyer or family lawyer to prepare it on your behalf. However, it is always advisable to seek out legal advice and assistance from a law firm that specialises in family law before beginning divorce proceedings.
Make sure you are eligible to apply
Again, the matter of whether you can legally apply for divorce depends on whether you satisfy several several criteria, these being:
- You or your spouse retain Australian citizenship, or you or your spouse have lived in Australia for at least 12 months prior to application, and intend to continue living in Australia
- Your marriage has broken down with no reasonable chance of reconciliation
- You and your spouse have been separated for at least 12 months prior to application. If you and your spouse have been separated but lived under the same roof for all or part of the 12 month period, additional evidence will need to be supplied to the court
- You must supply your marriage certificate
- You need to show that appropriate arrangements have been made to ensure that any child of your relationship will be cared for
- In the case that you have been married for less than 2 years, you and your spouse must either attend a mediation session or request permission for divorce from the courts with an affidavit
Know whether you are applying solely or jointly
Before beginning the online divorce application it’s important to determine whether you will file for divorce by yourself, or jointly with your spouse, as either option will require different forms of input from the parties involved.
Preparing the application
Before you can begin your application you will first need to register with the Commonwealth Courts Portal.
- The application itself involves several steps, including uploading relevant documentation. This includes:
- Marriage certificate
- Signed affidavit
- Australian citizenship certificate or passport
- Family counsellor certificate or affidavit
- Additional information that will depends on your particular situation
- Once the required documents have been uploaded, you will need to print the Affidavit for eFiling Application (Divorce) which will then need to be signed by you (and your spouse if being filed jointly) before a lawyer or Justice of the Peace. The signed affidavit will then need to be uploaded.
- After this you will need to download and read the Marriage Families and Separation brochure.
- Finally you will be required to pay a filing fee after which your application will be officially lodged and you may select a court date (even if you are not required to attend).
- If filed solely, you must serve a copy of the application, along with supporting documentation, to your spouse. Joint applications still require both parties to provide a copy of the application and documents to one another for their records.
Request for further documentation
Depending on your particular circumstances, the courts may request additional documentation such as a supplementary affidavit.
Attending divorce hearings are only necessary under certain circumstance, including:
- Your indication in the application that you wish to attend
- The respondent files a Response to Divorce objecting to the application
- You have filed a sole application for divorce and there is a child of the marriage during this time
While not strictly necessary, it is advisable that you attend your divorce hearing in the event that you are required to supply supplementary affidavit documents to support claims of separation under the same roof or divorce occurring less than two years after the marriage commenced.
Finalising your divorce
After being granted a divorce order at the conclusion of your divorce hearing, your divorce will be legally finalised one month and one day later.