Is it time to get a divorce?

Divorce is a process by which a married couple legally ends their marriage. In Australia, there are three eligibility requirements for obtaining a divorce. These are:

1. Legality of the marriage: In order for the Court to dissolve the marriage, the marriage must be legally recognise in Australia.

2. Connection to Australia: In order to apply for divorce in Australia, one of the spouses must have a connection to Australia. This connection can be established through citizenship, either by birth or grant, or by having lived in Australia for at least one year with the intention to continue to do so.

3. Separation: Married couples are required to be separated for at least 12 months prior to applying for a divorce. This is typically the date that the parties no longer cohabitate, however there are instances where a couple can be separated and still reside under the one roof. In these instances, the Court may request further information detailing the parties’ separation.

Application for Divorce

Divorce applications are filed online with the Commonwealth Courts Portal. The application requires information regarding the parties’ marriage, separation and arrangements for any children under 18 years. The Court also requires supporting documentation to be attached to the Application. The most common types of documents to be included are:

1. Marriage certificates;

2. Previous orders made in relation to the parties’ such as parenting orders, property orders or family violence orders; and

3. Affidavit detailing separation living under one roof.

When making a joint application, one party can complete the application and provide the application to their spouse for review and signing. Once signed, the application can then be filed with the Court with the divorce order being made on the papers, without an appearance required.

In applying for a sole application, one party completes and files the application (“the Applicant”). They must then serve the divorce application on the other party (“Respondent”) within a certain timeframe prior to the hearing date. If there are children under 18 years of age, an appearance before the Court is required.

If the divorce is granted, it becomes final one month and one day after the order made.

It is important to note that divorce is separate from parenting, property and other family law matters. These matters are dealt with separately and require their own legal process.

Divorces can be complex and difficult during an emotional period, and so it is important that you have an understanding of the eligibility and necessary steps involved. If you have any questions or require help obtaining a divorce, it is advisable to seek the assistance of our family law expert.