I would like a divorce. How do I apply?
Here's what you need to know
A divorce refers to the legal dissolution of a marriage by a court. In Australia, the law recognises the principle of no-fault divorce. This means that when granting a divorce, the Court does not consider why the marriage ended and is instead otherwise satisfied that there is no reasonable likelihood that the parties will get back together.
An application for divorce can be made either jointly or individually by one of the parties to the marriage.
You can apply for a divorce in Australia if either you or your former spouse:
- Are an Australian citizen by birth, descent or by grant of Australian citizenship; or
- Ordinarily live in Australia and have done so for the past 12 months; or
- Regard Australia as your home and intend to live in Australia indefinitely.
You will also need to prove to the Court that the marriage has broken down irretrievably and that you and your former spouse have been separated for a minimum of 12 months.
It is possible for the two of you to have separated but continued to live together in the same household in the 12 months before filing for a divorce.
This is known as “separation under the one roof”. If this is the case for you and your spouse, you will need to satisfy the Court that the two of you were separated during this time.
If you and your former spouse have any children under the age of 18, the Court will only grant a divorce if it is satisfied that proper arrangements have been made for them.
If you were married overseas, you must provide the Court with a copy of your marriage certificate. If your marriage certificate is in a language other than English, you will need to obtain a certified translation of your marriage certificate.
If you have been married for less than 2 years, you will need to undergo counselling and obtain a certificate from a relationship counsellor that states that reconciliation has been considered but is not possible between you and your former spouse.
It is important to note that the granting of a divorce does not determine issues concerning property distribution, financial support or arrangements for children – it simply recognises that the marriage has ended.
If you would like to know more about these areas of family law, please speak to one of our family lawyers