Separation & Divorce

The process of filing for divorce is generally simple and straightforward. In Australia, divorce is 'no-fault.' This means that there is no need to establish fault on the part of one spouse to obtain a divorce, nor will infidelity or bad behaviour by one spouse be relevant to the divorce proceedings.

To apply for divorce, it is merely necessary to meet the following requirements:

1. You are legally married.
2. You or your spouse are Australian citizens, permanent residents, lawfully present in Australia, or consider it to be your permanent home.
3. Your marriage has irretrievably broken down, and there is no real possibility that you will get back together.
4. You have been separated for 12 months or more.

An application for divorce can be filed individually (a sole application) or jointly with your spouse (a joint application). If you have filed a sole application, you will need to serve your spouse with the court documents.

You may contest a divorce application by filing a response to the divorce application. However, the principle of ‘no-fault divorce’ means that there is limited scope to oppose a divorce application.

In short, a divorce application can only be opposed if:

1. You have not been separated for 12 months despite it being alleged in the application that you have.
2. The court does not have jurisdiction because neither you or your spouse are Australian citizens, permanent residences or regard Australia as your permanent home.

The finalisation of a divorce recognises the legal end of a marriage. Once your divorce is finalised, both parties are free to remarry. A divorce order will also revoke your rights and entitlements under your former spouse’s will. Accordingly, it is important to seek legal advice on the effect of a divorce on your legal rights.

You will need to provide the court with a copy of your marriage certificate with your divorce application. If you do not have a copy of your marriage certificate you may obtain one from the Registry of Births, Deaths and Marriages or the relevant overseas authority if you were not married in Australia. A translated copy of the marriage certificate should be provided where the certificate is not in English, along with an affidavit from the translator verifying the translation.

If you are unable to obtain a copy of your marriage certificate, you will need to include an affidavit with your application containing the details of the marriage and an explanation of why you were unable to provide a copy of your marriage certificate.

To establish that your marriage has irretrievably broken down you must show that you and your spouse have separated with an intention to permanently sever the relationship. An intention to separate does not have to be held by both parties; it is enough for one party to communicate an intention to permanently end the relationship.

It is important to establish the date of separation. If you and your spouse disagree as to the date of separation, the following factors will be considered in determining the date of separation:

• Have the parties separated physically or ended cohabitation?
• Have the parties remained in a continuing sexual relationship?
• Have the parties separated their financial affairs?
• Have the parties communicated their separation to their friends, families or any relevant government agencies?

To file for divorce, you must prove that you and your spouse have been separated for at least 12 months. It is possible to separate but remain living together; however, if you and your spouse have separated but remained living under one roof, it will be necessary to provide additional information to the court to establish the period of the separation.

To show that you and your spouse have in fact separated, you need to show changes in the martial relationship which are suggestive of your intention to permanently end the relationship. These can include:

• Changes to the sleeping arrangements.
• Division of finances.
• Declining to perform homemaking or household duties for each other.
• Public presentation of separation, including communicating separation with friends and family and the reduction of family outings and shared activities.

You will also need to provide an explanation and details to the court of the following:

• Why you continued to live together after separation?
• If you have any intention to change the current living situation.
• The living arrangements of any children during the period of separation.
• Any government departments you have notified of your separation e.g., Centrelink.

If you have been married for less than two years at the time of applying for divorce, a divorce will not be granted unless:

1. You and your spouse attended counselling to consider the possibility of reconciliation and you have filed a counselling certificate; or
2. You can establish special circumstances and are given the court’s permission to divorce.

Special circumstances may include, domestic or family violence, the inability to locate your spouse or contentious litigation proceedings relating to parenting or property matters during the period of separation.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.