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Divorce, a legal termination of a marriage, follows a structured process outlined in the Family Law Act 1975 and Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Understanding the basic requirements and steps involved in applying for a divorce is crucial for those contemplating this significant life event.
What is Divorce?
In the legal context, divorce signifies the official dissolution of a marriage, freeing both parties from the marital ties and obligations.
Basic Requirements for Applying for Divorce in Australia
There are some fundamental prerequisites for initiating a divorce in Australia, including:
One year separation : A key requirement for divorce is that the spouses must have been separated for at least a year before filing for divorce.
Residency Requirement : To apply for divorce in Australia, at least one of the parties must regard Australia as their home and intend to live in Australia indefinitely or be an Australian citizen.
Irretrievable breakdown : The marriage must have broken down irretrievably, meaning there is no possibility of reconciliation.
Which Court to Apply to for Divorce?
In most Australian states, divorce applications are lodged with the Federal Circuit And Family Court of Australia (FCFCOA). FCFCOA has jurisdiction over divorce proceedings and other family disputes/issues (e.g., parenting orders). (In Western Australia, Family Court of Western Australia decides Divorce applications).
Basic Documents Needed to Apply for Divorce
When applying for a divorce in Australia, certain documents are essential to institute and substantiate a Divorce application. These documents include:
Marriage certificate : A certified copy of the marriage certificate must be provided.
Proof of citizenship/residency : Evidence demonstrating that one of the parties is an Australian citizen or regards Australia as their home.
Proof of separation : Documentation confirming that the spouses have been separated for at least 12 months year.
Application for Divorce : Applications for divorce should be eFiled using the Commonwealth Courts Portal online form.
There are several others steps and requirements which a Divorce applicant needs to comply with before the application is considered/decided by the court (such as serving the documents on the respondent properly). Likewise, understanding the time limitations affecting your Divorce application as well as other matters that may arise in the future (such as issues relating to division of matrimonial assets, etc.) are also very important.
Navigating through the process of applying for divorce in Australia can be daunting, but understanding the legal framework and requirements can ease the journey for those involved.
Married For Less Than Two Years?
If you have been married for less than two years, you must show the court that you have genuinely tried to resolve your differences with your spouse and attempted to salvage your marriage through mediation and other dispute-resolution methods. You can satisfy this requirement by filing a Counselling (Section 60I) Certificate with the court.
*The two-year period is calculated from the date of your marriage to the date of your application for a divorce.
You can obtain a Section 60I Certificate after you have attended a counselling session, for example, with an authorised marriage/relationships counsellor. In addition, you can contact Relationships Australia or the Family Relationships Advice Line to seek more information about counselling and to arrange the counselling session(s).
Overseas Marriages and Divorce In Australia
You can apply for a divorce order even if your marriage was solemnized overseas if either your spouse or you:
- are an Australian citizen
- are a permanent resident of Australia and intend to live permanently in Australia
- have lived in Australia for 12 months immediately before applying for a divorce order.
You must provide a marriage certificate in order to prove your marriage. If your marriage certificate is not in English, you must provide the court with an acceptable translation of your marriage certificate and the original. You will also need to provide an affidavit from the translator.
Living Under The Same Roof After Separation?
If your marriage has irretrievably broken down, but you are still living together or have lived together within the last 12 months before applying for divorce, then you will have to prove to the court that you were genuinely separated even though you were living together under the same roof. This situation is also referred to as 'separation under one roof'.
Proving separation under one roof may not be straightforward in every case. If that applies to you, you must consider seeking professional legal advice.
Other Things To Consider When Applying For Divorce In Australia
It is always advisable that an applicant for divorce must seek professional legal advice before applying for a divorce. There may be other potential issues that may be relevant but not obvious to an applicant. For instance, legal advice is highly recommended where:
there are under 18 children.
disputes may arise regarding property and financial issues at a later stage.
there is a Will in place, etc.
Have Under 18 Children Of Marriage?
Where there are under-18 children of the marriage, the court will not make a Divorce Order until it is satisfied that proper arrangements have been made for the 'care, welfare, and development' of the children.
A Word of Caution
Embarking on the path of divorce can be emotionally challenging, but having a clear understanding of the legal process can provide a sense of direction in an otherwise tumultuous time. By adhering to the guidelines stipulated in the Family Law Act 1975 and
FCFCOA (Family Law) Rules 2021 and furnishing the necessary documents, individuals seeking a divorce in Australia can navigate through the process with clarity and confidence.
Whether it's comprehending the concept of divorce, meeting the basic requirements, or knowing where to submit the application, being informed is the first step towards a smoother divorce procedure under the Australian legal system.
Remember, while the legal process may appear complex, seeking guidance from legal professionals specializing in family law can provide valuable support and ensure a seamless transition through this transformative phase.
Need Help With Your Divorce Application?
You can book an appointment with us if you need legal advice or assistance concerning your Divorce application.
Warning! No information provided on this website in relation to Australian laws, policies, procedures, directions (or any other matter) is intended to be legal advice. You must seek legal advice on issues specific to your situation and circumstances. Please read our Terms and Conditions.
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