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    Married Overseas, Divorce in Australia: A Complete Guide 2023 1024 700 Dorter

    Married Overseas, Divorce in Australia: A Complete Guide 2023

    Getting a divorce can be a challenging and emotional process, and if you were married overseas, you may have the added stress of not knowing if you can end the marriage in Australia. Understanding the essential steps involved in a divorce can help you to gain clarity during this difficult time.

    In this article, we will guide you through the necessary steps to get divorced in Australia if you were married abroad and ensure a clear and straightforward path to legal separation.

    Am I considered legally married in Australia if I married overseas?

    In Australia, if you married overseas, your marriage is generally recognised as valid as long as it was valid in the country where the marriage took place. However, there are certain circumstances where a foreign marriage may not be recognised in Australia.

    Here are some examples:

    • If you or your former partner were already married to someone else at the time of the foreign marriage, your second marriage may be considered invalid in Australia.
    • If you or your former partner were underage according to Australian law at the time of the foreign marriage (below 18 years old).
    • If the marriage ceremony did not meet the legal requirements of the country where it took place

    While your marriage may be legally recognised, it does not automatically mean that you can immediately apply for a divorce in Australia. You must meet certain criteria and satisfy the jurisdictional requirements of Australian family law to start the divorce proceedings.

    How to get a divorce in Australia if married overseas

    To get divorced in Australia when you married overseas, you need to meet certain requirements and follow the divorce process outlined in the Australian Family Law Act.

    Here are the key requirements:

    a. Either you or your former partner is an Australian citizen.

    b. Either you or your former partner regards Australia as your permanent home and intends to live in Australia indefinitely.

    c. Either you or your former partner has lived in Australia for at least 12 months before you apply for a divorce.

    Other Requirements for Getting Divorced in Australia if Married Overseas

    Marriage Certificate

    You must provide a copy of your marriage certificate as proof of your marriage. If your marriage certificate is not in English, you must provide an authorised translation along with the original document.


    You must demonstrate that your marriage has irretrievably broken down, which is typically established by a period of separation.

    In Australia, the requirement is that you and your former partner have lived separately for at least 12 months before you apply for a divorce. It is possible to be separated while still living under the same roof, but you need to provide evidence to support that separation has occurred.

    No Reconciliation

    You must confirm that there is no reasonable likelihood of reconciliation between you and your former partner. This means that you have made genuine efforts to reconcile but have been unsuccessful.

    Once these requirements are met, you can file an Application for Divorce with the Family Law Courts. If the court is satisfied with the application, a divorce order will be granted, officially ending your marriage.

    No-fault divorce in Australia

    To obtain a divorce order, you do not have to prove the fault or wrongdoing of a party.

    In Australia, the only ground for divorce is the irretrievable breakdown of the marriage, which is demonstrated by a period of separation of at least 12 months. This means that neither party needs to prove fault, such as adultery or domestic violence, to obtain a divorce.

    This approach to divorce is similar to the laws in many other countries that have adopted a no-fault divorce system. There are some countries, however, that still require specific grounds or reasons for divorce, such as adultery, abandonment, or cruelty.

    In those countries, the parties may need to provide evidence or prove fault to obtain a divorce.

    The Divorce Process in Australia for People Married Overseas

    Here’s a simplified overview of the process that you may go through if you’re married overseas and want to get divorced in Australia.

    1. Gathering the documents

    You must obtain your marriage certificate and any relevant documents related to your marriage, separation, and children. As we mentioned earlier, if the marriage certificate is not in English, it will need to be translated.

    2. Divorce application

    Fill out the divorce application form with all necessary information about yourself, your former partner, your marriage, and any children.

    3. Lodge the Application

    Submit the completed divorce application form to the Federal Circuit and Family Law Court of Australia, either online or in person, and pay the required filing fee. You can access up-to-date filing fees here.

    4. Serve the Application

    Serve a copy of the filed divorce application on your former partner, following the specific rules and guidelines for service. This step is only required if you’re making a sole application for divorce – which we will explain in more detail below.

    5. Wait for a Response

    Your former partner has a specified timeframe to respond or contest the divorce. If there is no response, an uncontested divorce may proceed.

    6. Divorce Hearing

    If there are issues to resolve or your former partner contests the making of a divorce order, a court hearing may be necessary. Otherwise, a court hearing is not ordinarily required.

    7. Divorce Order

    If all requirements are met, the court will grant a divorce order, officially ending your marriage. Once made, an order becomes final after one month and one day at which time the court issues the sealed order.

    Joint application vs sole application in divorce

    There are two ways you can apply for a divorce: sole and joint application. Here’s how they differ from each other.

    Joint application

    A joint application for divorce is filed when both you and your spouse agree to the divorce and are willing to cooperate throughout the process. This means that both parties work together to complete and sign the Application for Divorce form. It is a joint declaration stating that you both consent to the divorce.

    In a joint application, both parties are considered joint applicants, and both need to sign the application form. This option is generally more straightforward and can often lead to a faster and smoother divorce process as there is no requirement of service.

    Sole Application

    A sole application for divorce is filed when only one spouse wishes to initiate the divorce. In this case, you will be the sole applicant, and your spouse will be the respondent. You will need to complete the Application for Divorce form on your own, without your spouse’s signature.

    A sole application is appropriate when there is a breakdown in the relationship, and both parties are not in agreement or are unable to cooperate. It is also used when your spouse cannot be located or refuses to participate in the divorce process.

    A sole application can also occur even when both parties agree to get divorced. In this case, the divorce papers will still need to be served to the party that did not apply for divorce.

    What if I don’t know the location of my former spouse?

    If you do not know the location of your partner, there are steps you can take to proceed with the divorce process.

    Reasonable Efforts

    You must demonstrate to the court that you have made reasonable efforts to locate your spouse. This typically involves attempts to contact them through various means such as phone calls, emails, letters, or mutual acquaintances. These attempts must be then recorded in an Affidavit, explained below.

    Don’t forget to keep a record of your attempts to locate your spouse, including any responses or lack thereof.

    Notice of Divorce

    Once you have made reasonable efforts to locate your spouse without success, you can seek the court’s permission to proceed with the divorce by serving them with a Notice of Divorce by way of substituted service.

    Substituted service means serving the documents through an alternative method approved by the Family Court. For example this may be through means such as by publication in a newspaper or through a social media platform.


    Along with the Notice of Divorce, you will need to file an Affidavit outlining the steps you have taken to locate your spouse and why you believe they cannot be located. The Affidavit should provide as much information as possible about your attempts to find them and give notice of your application.

    Court Consideration

    The Court will review your application, the supporting documents, and your Affidavit. If the Court is satisfied that you have made reasonable efforts to locate your partner and that it is appropriate to proceed without their participation, they may grant permission for the divorce to proceed.

    Divorce Order

    If the Court is satisfied with your application and there are no other complications, a divorce order may be granted, effectively ending your marriage. The court will specify the method of service and the date from which the divorce becomes final.

    What if there are children involved?

    When addressing matters related to children, the Court prioritises their welfare and aims to ensure their ongoing care and support.

    Both parents are encouraged to maintain a meaningful relationship with the children unless there are circumstances such as abuse or violence that warrant restrictions.

    In divorce proceedings, you and your spouse will be required to outline to the Court what arrangements have been made for the care of the children.

    The court will then assess whether there are proper arrangements for the care, welfare and development of the children. If the court is not satisfied that proper arrangements have been made for the care of children, the court could decline to make the order. This occurs rarely notwithstanding that it is common that a parent may contend that arrangements may not be proper or in the best interests. The Court does not hear parenting disputes in the course of making a divorce order. Parenting custody or access disputes require a separate application.

    Do I need to divorce in Australia if married overseas?

    While the specific laws and requirements can vary depending on your circumstances, here are a few reasons why getting a divorce in Australia may be necessary:

    Legal Recognition

    By obtaining a divorce in Australia, you ensure that your divorce is recognised and valid under Australian law. This can have implications for various legal matters, such as property division, financial settlements, and child custody arrangements.

    Future Relationships

    In some cases, future legal requirements or benefits may depend on having an official divorce order from Australia. For example, if you wish to remarry in Australia or claim certain government benefits, having an Australian divorce can be important.

    Is overseas divorce valid in Australia?

    In Australia, the validity of an overseas divorce depends on several factors. Generally, if you obtained a divorce overseas according to the laws of that country, your divorce will be recognised as valid in Australia.

    However, there are certain circumstances where an overseas divorce may not be recognized. Here are some key considerations:


    The jurisdiction refers to the legal authority of a court to hear and decide a case. In the context of an overseas divorce, it means that the foreign court that granted the divorce must have had the appropriate legal authority over the matter. If the court had jurisdiction based on your or your former partner’s residency or domicile in that country, the Australian courts are more likely to recognise the divorce.

    Legal Requirements

    Each country has its own specific legal requirements for obtaining a divorce. For an overseas divorce to be recognised in Australia, it must have met the legal requirements of the country where it was granted. This typically includes fulfilling residency requirements, following the proper procedures, and obtaining a legally valid divorce order, decree or certificate.

    Compliance with Australian Law

    While an overseas divorce may be recognised in Australia, it must also comply with Australian law, particularly if there are related matters such as property division or financial settlements.

    For example, if the overseas divorce did not address or adhere to Australian family law principles regarding property settlement, you may need to initiate separate legal proceedings in Australia to resolve those issues.

    How we can help you

    Even if you were married overseas, we can assist you with your divorce process.

    The first step is to determine if your marriage is recognised under Australian law. If it is, we can proceed and apply for a divorce. We will guide you through the necessary paperwork and documentation, ensuring all legal requirements are met.

    If your marriage is not recognised, we will explore alternative legal options to dissolve your relationship. Throughout the process, we will provide you with expert advice on your rights, obligations, and entitlements under Australian family law.

    We will advocate for your interests during negotiations regarding property division, spousal maintenance, and child custody matters if applicable.

    Ultimately, our goal is to help you navigate the divorce process efficiently and help you achieve a fair resolution, while prioritising your best interests and emotional well-being.

    Contact us for an initial consultation.

    Getting a Divorce in Australia: What You Need to Know 1024 713 Dorter

    Getting a Divorce in Australia: What You Need to Know

    Deciding to end a marriage is a difficult choice that often involves making emotional and complicated decisions.

    Although the process of getting a divorce is relatively simple, the challenges arise due to the additional issues such as asset division and child custody that can make finalising the divorce and ending the relationship a daunting process.

    If you are in the midst of a divorce or contemplating one, you might have queries regarding divorce, including your legal alternatives, rights, and obligations. In this article, we will answer 8 of the questions we’re asked as family lawyers about getting divorced in Australia.

    1.   How do you get divorced in Australia?

    The process of getting divorced in Australia is relatively simple. To be granted a divorce, you must meet the requirements for divorce, and fill out a divorce application form. This form can either be submitted jointly with your spouse, known as a joint application, or alone, known as a sole application.

    The divorce application form will require additional documentation, such as a marriage certificate, and if not in English, a translated copy. Once completed, the form and documents are uploaded to and lodged with the Commonwealth Courts Portal.

    It’s worth noting that a divorce order is a formal and legal recognition of the end of the marriage, and it’s separate from property settlement and parenting matters. These issues must be resolved either formally or informally, but they don’t need to be finalised before you lodge your application for divorce.

    If you and your partner reach an agreement about finances and children, it can be informal and not enforceable by the court. However, if you want to formalise the agreement, you can apply for consent orders. In most circumstances, it is recommended that agreements be formalised.

    If you’re unable to agree, you may need the help of a legal professional or the Court to reach an agreement on the division of property. It’s important to apply for this settlement within 12 months of the divorce being approved.

    Another important point to note is that the divorce process is the same for same-sex couples too.

    2.   What are the criteria need to apply for divorce?

    Before applying for divorce in Australia, there are certain criteria that must be met by the couple. These requirements include:

    • At least one of the spouses must be an Australian citizen, have been born in Australia, or have lived lawfully in Australia for a minimum of 12 months.
    • The validity of the marriage must be proven. i.e. confirmed by producing a copy of the marriage certificate.
    • The couple must have been separated for a minimum of 12 months and one day. During this period, they may either live apart or continue living together without being a couple, which is known as separated under the same roof.
    • The breakdown of the marriage must be irretrievable (i.e. there is no chance of a reconciliation) , which is typically demonstrated by the 12-month separation period.
    • If the marriage has lasted less than 2 years, the couple must provide a certificate from a counsellor who confirms that they have attempted to reconcile. However, in cases where domestic violence has occurred, counselling may not be mandatory.

    It’s important to note that divorce in Australia is “no-fault” which means that you don’t need to prove that your spouse is responsible for any wrongdoing or the downfall of the relationship. The “no-fault” divorce system was introduced to help to make the process of divorce less hostile.

    3.   Is court attendance needed when you get divorced?

    It’s not always necessary. As mentioned previously, for the divorce application, there are specific situations where you may be obligated to appear in court. One example is if you file for a sole divorce application and have children under 18. The attendance at court is usually limited to appearing by telephone/video conference and often the hearing takes no more than 10 minutes.

    You may also be required to attend court if you and your spouse cannot reach an agreement regarding property settlements or parenting arrangements.

    4.   How long does it take to get divorced?

    There is no expedited process for divorce, nor is there an option for an immediate divorce.

    To be eligible to apply for divorce, you and your spouse must have been apart for a minimum of 12 months. Once you have submitted your divorce application, you can anticipate being granted a divorce order within 3 to 4 months.

    The 12-month separation period is intended to give both parties ample time to contemplate whether divorce is the ultimate decision.

    5.   Can you get divorced if you’re partner doesn’t want to?

    In Australia, you do not need to file for divorce jointly with your spouse. A sole divorce application can be submitted, and it is not mandatory for your spouse to sign the application before you can lodge it.

    The Court will approve a divorce order if they are satisfied that the marital relationship has broken down beyond repair, and there is little possibility of reconciliation.

    If you apply for a sole divorce, you must serve your spouse with the divorce application. This is to ensure that they are informed of the impending divorce application.

    It is necessary to attend court if you are applying for a sole divorce and you have children.

    If you are considering filing for divorce alone, we recommend that you consult a family lawyer. We can assist you in understanding the process and guide you in completing it swiftly.

    6.   What’s the difference between an annulment and a divorce?

    When ending a marriage, spouses may seek legal orders in the form of a divorce or an annulment.

    A divorce involves the termination of a valid marriage, while an annulment declares that a marriage was never valid. An annulment can only be granted under certain circumstances, including:

    • If the marriage was not legally performed
    • If one party was underage at the time of marriage
    • If one party was coerced into the marriage
    • If one party was incapable of consenting to the marriage due to a mental disability
    • If one party was already married when entering into the marriage
    • If the parties to the marriage are close relatives which is prohibited

    The process of obtaining an annulment is typically more complex than that of a divorce, as the court must investigate the circumstances surrounding the marriage to determine if an annulment is appropriate. An annulment is also referred to as a declaration of nullity.

    7. Is getting a divorce required after separation?

    If you and your spouse decide to separate, you are not legally required to obtain a divorce. However, staying married can have an impact on your financial obligations and rights. It also may have an impact on your estate planning. Thus, it is recommended to seek legal advice.

    If you intend to remarry, you must first obtain a divorce. Often when marrying for second time, you may be asked to provide proof of divorce and will need to produced the Divorce Order with the Court’s seal.

    8.   Do I need a lawyer to get divorced?

    It is not mandatory to hire a lawyer to get divorced. In recent years the Court has made the process easier for people to apply without the assistance of lawyers and the process can be completed online. However, many individuals opt to work with a lawyer due to the complexities that arise during a divorce such as property settlements and parenting matters.

    As each situation is unique and family law can be intricate, understanding your rights and obligations is not always straightforward. A divorce lawyer can assist you throughout the entire process, including the online application, and ensure that you understand your rights and responsibilities and that all necessary documentation is provided. This can make the entire process more manageable and efficient.

    Do you need a divorce lawyer?

    If you are in Australia and contemplating a divorce while seeking legal guidance, a family lawyer can provide assistance.

    Family and divorce lawyers possess extensive qualifications and expertise in guiding couples through the divorce process and attaining resolutions that enable them to progress with their lives.

    Divorce can be a difficult and emotional period, but you need not face it alone. You can have a no-obligation consultation with family lawyers to discuss your situation at no cost.

    Discuss your situation with the team here at Dorter Family Lawyers. Based in North Sydney, our team is well-versed and highly experienced in all kinds of family law matters, including divorce and separation.

    What is a Gett? 1024 683 Dorter

    What is a Gett?

    When a couple who practise their Jewish faith separate and wish to “divorce”, there are only two ways to end their status as a married couple – by death or the grant of a Gett.  The issuing of the Gett effects the divorce between the Jewish couple according to Jewish Law.

    Pursuant to Jewish law (“Halakha”), a “divorce” can be accomplished only by the parties. It is effected by the formal delivery by the husband and the acceptance of the wife of the bill of divorcement (“Gett”) under the supervision of the Rabbinical Court, namely the Beth Din. The parties are divorced and free to marry again once the Gett has been delivered and accepted.

    However, outside of Israel, the Beth Din lacks judicial power, therefore, should one spouse seek a Gett and the other refuse, the Beth Din in Australia is unable to assist them. They may however apply to the Family Court for assistance.  

    What happens if I do not get a Gett?

    Without a Gett, a woman will be unable to remarry under Halakha and for a man it is extremely difficult to do so.

    Without a Gett, a woman is termed “agunah”, literally meaning one who is “chained” to a man from whom she is unable to procure a Gett. Any child or children born to an “agunah” will bear the stigma and burdens of being illegitimate. It may have consequences that flow through the descendants who forever may be unable to rectify their situation.

    Requirements of a Gett

    Halakha requires the following specific formalities to be complied with in order for a Gett to be considered valid:

    1. A divorce document must be written; this is usually done by a professional religious scribe (“sofer”).
    2. It must have been written on the explicit instruction and with the free-willed approval of the husband, with the specific intention that it is to be used by the man and the wife to that marriage.
    3. It cannot be initially written with “blanks” to be filled in later.
    4. It must be delivered to the wife, whose physical acceptance of the Gett is required to complete and validate the “divorce” process.

    Can the Family Court of Australia order my ex-partner to grant me a Gett?

    The Family Court must consider two factors in determining whether an order should be made.

    Firstly, it must be consonant with the requirements of the Jewish Law or otherwise a Gett may be void (for unlawful duress) and the Court’s actions therefore futile.

    Secondly, from a public policy perspective, if not a constitutional one, civil courts should not be seen to become involved in religious matters.

    Getting a Gett

    Where does this leave us?

    The Family Court of Australia has been hesitant to assist separating Jewish Parties obtain a Gett.

    The Court has entertained applications in relation to Getts in some circumstances but is yet to make a finding that on a final basis that the court has the power to Order parties to attend a Beth Din and do “all acts and things necessary” to obtain a Gett.   

    Gett Assistance

    For many Jewish Couples who separate it is important to obtain a Gett following the breakdown of a marriage. If securing a Gett is important to you, we can assist you by:

    • Negotiating this element or ‘limb’ of your final settlement through mediation or a round table conference outside of court proceedings and document the agreement reached as a consent order; or
    • Seeking Orders from the court, to the effect that you and your ex-partner are to attend “when called upon” and declare that such order “not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious court or in any way inhibiting the Respondent or Applicant in making any application”.

    If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.

    Rebekah Dorter

    Maeve Cooper

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

    Financial Abuse 1024 683 Dorter

    Financial Abuse

    When it comes to domestic and family violence verbal and physical abuse usually come to mind. However, a further widespread form of domestic and family abuse is ‘financial or economic abuse’.

    What is Financial Abuse?

    Financial abuse occurs when one party uses money to control, coerce or to restrict the other person in a domestic relationship. This type of abuse frequently occurs hand-in-hand with other forms of abuse, such as physical or emotional abuse.

    Am I Being Financially Abused?

    It can be difficult to recognise financial abuse. Perpetrators may often ‘excuse’ their behaviour as a consequence of the victim’s financial illiteracy or being due to “traditional roles” in the family.  A pattern of behaviour is usually exhibited and unfortunately, the abuse may escalate over time.

    Financially abusive behaviour can include but is not limited to:

    • taking control of someone else’s finances (e.g. being in charge of all the household income and paying the other person an allowance);
    • controlling how all of the household income is spent;
    • forcing a family member to claim social security benefits like Centrelink;
    • insisting that a family member apply for a second credit card;
    • preventing a family member from working;
    • preventing a family member from studying;
    • refusing to give access to bank accounts;
    • denying a family member access to money so they cannot afford basic expenses such as food or medicine.

    The Effects of Financial Abuse

    The effect of financial abuse can be far-reaching and usually includes suffering from emotional trauma and homelessness.

    Financial abuse affects the victim’s financial independence preventing them from accessing education, healthcare and in some cases basic personal items which can leave them with no alternative but to remain in the abusive relationship.

    In many cases, financial abuse continues post-separation. This includes perpetrators engaging in prolonged litigation, hiding assets or defaulting on financial responsibility such as a mortgage leaving the victim with poor credit score, thus exacerbating their financial stress and vulnerability.

    What Support is Available for Financial Abuse?

    Any form of abuse is unacceptable. We all have a right to live life without fear of abuse or violence. Support services are available on both state and federal levels and can assist you if you are experiencing domestic or family violence, including financial abuse.

    Some support services which are available include:

    • Financial Abuse Legal Service (Redfern Legal Centre)
    • NSW Domestic Violence Helpline;
    • Women’s Legal Services NSW;
    • Domestic Violence NSW;
    • Legal Aid;
    • 1800Respect;
    • National Aboriginal and Torres Strait Islander Legal Services.

    Do You Need Legal Help?

    Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about financial abuse. 

    Please get in touch with us on (02) 9929 8840 or hello@dorterfamilylawyers.com

    Rebekah Dorter

    Tim Russell

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

    The Duty of Disclosure 1024 575 Dorter

    The Duty of Disclosure

    Do I have to Disclose?

    The answer is… Yes!

    We are often asked by our clients what they must disclose in their family law matter after they have separated from their partner and what their former partner is obligated to disclose.

    Both parties to a marriage or de-facto relationship are required to provide full and frank disclosure of information relevant to their financial circumstances. This means parties must provide each other with all information relevant to an issue in their case, including information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other party may not know about.

    This duty of disclosure is a positive duty imposed by the Family Law Rules and the Federal Circuit Court Rules and is quite different to the obligations parties may have in a commercial dispute.

    What does disclosure involve?

    As part of your disclosure obligations, common documents required are those that evidence the following: –

    1. All income or earnings (whether paid directly to the party or not);
    2. Any interests in any ‘property’ or entity fully or partially owned or controlled by the party;
    3. All financial resources, including interests in a trust;
    4. Any disposal by the party that may affect, defeat or deplete a party’s claim; and
    5. All liabilities of the party or of any relevant entity.

    ‘Property’ for the purpose of a family law settlement is not just real property but is a much broader concept and means all assets, including superannuation.

    When does your duty to disclose begin?

    Your duty to disclose begins once you separate (with the pre-action procedures) which means before a case starts, and this duty continues until the case is finished. The duty of disclosure is an ongoing obligation and extends to all documents in your possession, power or control.

    Your duty to disclose continues until your matter is finalised which means that you must continue to provide such information as your circumstances change or more documents are created or come into your possession, power or control.

    What happens if a party to a case does not disclose?

    There are a number of consequences which may follow if a party to a case fails to disclose, including but not limited to cost orders, and if a matter has been finalised the settlement may be re-opened if the non-disclosure resulted in a detriment to the other party.

    It is important to provide disclosure in a timely matter, and to be honest and forthcoming with your disclosure documents. Non-disclosure contributes to significant delays in resolving a family law matter and significantly increases costs.

    We can help you

    Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about child support.  Please get in touch with us on (02) 9929 8840 or hello@dorterfamilylawyers.com

    Rebekah Dorter

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

    Declaration of Nullity and Divorce 800 533 Dorter

    Declaration of Nullity and Divorce

    “Is a Declaration of Nullity the Same as a Divorce?”

    After married couples have been separated for a period of twelve (12) months they may wish to apply to the Family Court or the Federal Circuit Court for Divorce. Some clients, however, ask if they can obtain a Nullity rather than a Divorce order.

    What is a Nullity?

    A Declaration of Nullity is a finding by the Family Court of Australia that, although a marriage ceremony may have taken place, the marriage between the parties is void and not legal. As a result, the outcome is that the parties to the void marriage do not become divorced, but rather it is as though they were never married in the first place. This is also known as a marriage annulment.

    How to Declare Nullity

    The Court is able to make such a declaration in accordance with the Family Law Act however, there are very specific grounds upon which a Declaration of Nullity may be sought. A Declaration of Nullity may be made on the following grounds:

    1. At the time of the parties’ marriage, one of the parties remained married to someone else (a previous relationship where no divorce occurred);
    2. The parties are in a prohibited relationship;
    3. The parties did not comply with the laws of the marriage in the country they were married;
    4. Either party was not of a legal age to marry and did not hold the relevant approvals; or
    5. Either of the parties did not give their real consent to the marriage because:-
      • consent was obtained by duress or fraud;
      • one party was mistaken as to the identity of who they were marrying or the nature of the ceremony; or
      • one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

    When do you want to seek a Declaration of ‘Nullity’ and not a ‘Divorce’?

    The purpose of a Declaration of Nullity is to find a marriage “void”, meaning “of no effect”. The primary reason a Declaration of Nullity is sought is when one of the parties is already married. This is often the case when:

    1. A party is unaware that their previous marriage was formally registered; or
    2. A party is unaware that no Divorce Order has been granted in relation to their earlier marriage.

    A recent Family Court Decision dealt with this issue whereby an Application for Nullity was sought. In this case, the Wife had not obtained a Divorce Order from her previous Husband. The Wife had been separated from her former Husband for approximately 12 years prior to the second marriage, however, she was not aware that a Divorce Order had not been granted from her first marriage.

    In this matter, there were three (3) steps that needed to be completed: –

    1. Apply to the Family Court for a Declaration of Nullity;
    2. Obtain a divorce from her first Husband; and
    3. Legally re-marry.

    When is a Marriage Recognised?

    The ­­­­­­­­­­­­­­­­­­­­Marriage Act 1961, defines marriage as “The union of 2 people to the exclusion of all others, voluntarily entered into for life.”

    The criteria to be legally married in Australia, requires that you must: –

    1. Not be married to another person;
    2. Not be marrying a parent, grandparent, child, grandchild, brother, or sister;
    3. Be at least 18 years old, unless a court has approved a marriage where one party is aged between 16 and 18 years old;
    4. Understand what marriage means and freely consent to becoming husband and wife;
    5. Use specific words during the ceremony; and
    6. Give written notice of the intention to marry to their authorised celebrant, within the required time frame.

    If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 99298840.

    Luke Meehan

    Rebekah Dorter

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

    Understanding Child Support 1024 683 Dorter

    Understanding Child Support

    What is Child Support?

    In Australia the Federal Government, through Services Australia, administers the assessment and collection of Child Support to ensure children receive an appropriate level of financial support from their parents after they separate or divorce. Services Australia provides services to parents and carers, assisting them by issuing assessments, reviewing those assessments and facilitating the collection of child support.

    How do I apply for child support?

    A parent can apply to the Child Support Agency (‘the Agency’) for an assessment to be made, for the other parent to pay them child support to assist with payment of expenses incurred for the benefit of the children of the relationship. 

    When a parent makes an application for child support, that application means that both they and the other parent will be assessed in respect of the costs of the children. This assessment is made by comparing the respective income of the parents, coupled with the nights per calendar year each child spends with the parents.

    When there is more than one child of the relationship, an application must be made for each child.  This application can be done online and requires the applicant to provide the following details of both parties:

    1. Contact details;
    2. Reference numbers;
    3. Income;
    4. Bank account; and
    5. Relationship details.

    Can I Change the Rate of Child Support Payable?

    There may be several reasons how the amount of child support that you have been assessed to pay can change, including an application to change the assessment.

    Once your annual rate of child support has been assessed, both you and your ex-partner may be able to apply to the Agency to change the assessment. The Agency is only able to change the assessment if they are satisfied there are special circumstances and the change would be fair to both parents and the child.

    There are 10 reasons to apply for a change of assessment, including:

    1. The costs of raising the child are significantly affected by the high costs of spending time or communicating with the child.
    2. The costs of raising the child are significantly affected because of their special needs.
    3. The costs of raising the child are significantly affected because the child is being cared for, educated or trained in the way both parents intended.
    4. The child support assessment is unfair because of the child’s income, earning capacity, property or financial resources.
    5. The child support assessment is unfair because you have paid or transferred money, goods or property to your child, the receiving parent or a third party, for the child’s benefit.
    6. The costs of raising the child are significantly affected by the parent or non-parent carer’s child care costs, and the child is under 12 years of age.
    7. Your necessary expenses significantly reduce your capacity to support the child.
    8. The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
    9. Your capacity to support the child is significantly reduced because of:
      a. your duty to maintain another person or child;
      b. the special needs of that person or child; and
      c. the costs of spending time with or communicating with that person or child.
    10. Your responsibility to support a resident child significantly reduces your capacity to support another child.

    The Agency is required to notify both you and your ex-partner in writing when an application to change a child support assessment is accepted.

    By entering into a Child Support Agreement

    You and your ex-partner can agree to provide regular payments and/or payments for your children’s expenses that differ from what was assessed by the Agency and enter into a private agreement.

    A child support agreement allows payments to be made in a number of ways including periodic payments, lump sum payments and payments for certain expenses (such as private school fees, extra-curricular activities and private health insurance), which are known as non-periodic payments. Further, both you and your partner can agree to enter into a binding agreement that provides for neither party to pay child support at all.

    Depending upon the terms of the agreement, non-periodic child support may be made instead of the regular periodic payments or in addition to the regular periodic payments.

    There are two types of child support agreements that you and your ex-partner may enter into, namely:

    1. A Binding Child Support Agreement (‘BCSA’); or
    2. A Limited child support agreement (‘LCSA’).


    BCSAs are intended to provide a high level of certainty and finality about child support arrangements. As such, the terms of an agreement are usually unable to be varied once the agreement is signed and the agreement is much more difficult to have terminated or set aside by a Court.


    In comparison, LCSAs are designed to consider changing circumstances and may be brought to an end after three (3) years if either party desires, or sooner if certain changes occur or the Court decides that the child support to be paid pursuant to the agreement is not proper or adequate. 

    Do you need help understanding child support?

    Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about child support.  Please get in touch with us on (02) 9929 8840 or rebekah@inst1045122-8984.ozhosting.com.

    Maeve Cooper

    Rebekah Dorter

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.