Divorce

Divorce is the legal end of a marriage (dissolution of marriage). Australia has ‘no fault’ divorce. This means that when granting a divorce, the Court does not consider the reason/s the marriage ended. Neither spouse needs to prove that the other did (or did not) do something which caused the breakdown of the marriage. The only ground for divorce is that the marriage broke down and there is no reasonable chance that the parties will get back together.

The granting of a divorce does not determine issues of financial support, property division or arrangements for children. It is simply a formal recognition that the marriage has ended.

Separation

The only requirement for a divorce is the ‘irretrievable breakdown’ of the marriage and that both spouses having been separated for 12 months or more with no likelihood of getting back together.

Separation generally means living apart from each other. It can be unilaterally initiated by either spouse, or mutually decided.

It is possible to be ‘separated under one roof’ if certain criteria are met. If you are separated under the one roof, it is important to get legal advice.

Divorce Application

It is important to understand whether to file a sole or joint application, as there are different obligations in either case. You can either file sole or joint application. In sole application, Court attendance is not required if there are no children of the marriage, but Court attendance is required if there are children under the age of 18 years.

In joint application, usually Court attendance is not required.

Marriage Duration

If you have been married for less than two years, you will need to attend counselling with a family counsellor and file a counselling certificate or get permission from the court to apply for a divorce without the certificate.

You need to contact Family Relationship Advice Line (FRAL) on 1800 050 321. If you are unable to attend counselling with your spouse, you will need to file an affidavit as per the fact sheet.

Basic Residence Eligibility

You or your spouse must:

• Be an Australian citizen or
• Live in Australia and regard Australia as your permanent home or
• Ordinarily live in Australia and have done so for at least 12 months before the divorce application.

Service of Divorce Application

In case of sole application, you must serve a copy of the divorce application to your spouse by the following methods:

• Personal Service: You can have someone over 18 (other than yourself) deliver the papers to your spouse. You are not allowed to personally serve the divorce documents on your spouse.
• Post: The papers can be sent by mail with a signed acknowledgment of receipt.

An application can be made to the court for substituted service or dispensation of service if the spouse cannot be located, an application can be made to the court for substituted service or dispensation of service.

The divorce documents must be served at least 28 days before the divorce hearing date if your spouse is in Australia, or at least 42 days before the divorce hearing date if they are overseas.

Minor Children

If you have children under the age of 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

Can’t Locate Spouse

If you are unable to locate your spouse, even after you have taken all reasonable steps to locate them you, you may be able to file divorce application. You will need to upload a further application seeking an order to dispense with service or for substituted service.

Property Matters

The granting of a divorce does start limitation periods (time limits) for applying to the Court in relation to most financial matters. Most financial/property proceedings arising from the breakdown of a marriage must be started within 12 months of the divorce order taking effect or 2 years for de facto couple, unless otherwise agreed with the other party.

Opposing Divorce

You can hardly do anything as mentioned earlier that it is no fault divorce in Australia. The only thing you may be able to delay divorce proceedings or confirm the exact fate of separation by proving that the 12-month separation period has not been met or the court lacks jurisdiction.