Divorce in Australia
What do I need to do to get a divorce in Australia?
A divorce order can be obtained if you or your spouse live in Australia permanently, are a citizen, or have lived in Australia for the 12 months leading up to filing for divorce. You must satisfy to the Court that a separation of no less than 12 months has occurred.
Legal separation requires that you and your partner have been living separate lives for a continuous period of 12 months with 3 months permitted for reconciliation. The Court will examine the state of your relationship prior to separation and compare it to your current circumstances.
Section 49(2) of the Family Law Act 1975 allows couples to endure separation whilst living together. There must be a clear destruction in the relationship and both parties must be aware of the separation.
When there has been a separation under the one roof, the applicants for the divorce must prepare an affidavit that proves a change in relationship and that separation has occurred. A third party is also required by the Court to submit an affidavit affirming this and outlining their knowledge of the separation.
Your spouse does not have to apply for a divorce with you. A joint application or a sole application can be filed. The only requirement is that they must be aware of your intentions to fulfil the criteria for legal separation.
Are there any grounds that I need to satisfy in order to apply for a divorce?
The Family Law Act 1975 orders the only criteria to be satisfied to apply for a divorce is that the “marriage has broken down irretrievably”. There must be no chance that the marriage will reconcile. The 12 month separation serves as proof of this point.
Proper arrangements for any children under the age of 18 must be made before a court will grant you a divorce.
In situations where the marriage has broken down within two years further requirements must be satisfied. The courts aim to give a couple the benefit of the marriage. You must attend marriage counselling to discuss or attempt reconciliation.
What do I do if my partner wants a divorce and I don’t?
It is only possible to oppose an application for divorce if separation has not occurred or if the court lacks jurisdiction on the matter. A Response to Divorce must be filed and you must clarify the grounds for which you are opposing the divorce order. Attendance at the hearing date is necessary if you want the Court to take into account your concerns.
When can I get married again?
Any plans to engage in a new marriage should wait until after the divorce order is made final. Generally, this occurs one month and one day after your divorce hearing.
Notice of Intended Marriage must be given to the marriage celebrant one month prior to your wedding day. The celebrant can not accept this intent until the divorce has been granted, and they must be presented with a copy of the divorce order to legally perform the marriage.
If you require advice on family law or defacto law matters, including separation and divorce, please contact one of MST’s experienced Family Law lawyers to obtain further information.
Author: Elisa Garzarella
