When applying for a divorce you are simply applying for your marriage to legally end. The divorce application process itself does not deal with making arrangements for the care of children or financial issues to be separated. This should be dealt with separately.
A divorce order is granted if there is an irretrievable breakdown of the marriage. Under the Family Law Act 1975, the Court determines that there is an irretrievable breakdown of the marriage if:
- the husband and wife have lived separately for 12 months or more (and this may include separately under the one roof); and
- there is no reasonable likelihood of resuming married life.
It is possible for you to be classed as separated even though you still live under the one roof, however, there must be a significant change to the living arrangements in order to show this.
To apply for a divorce in Australia, you or your spouse need to:
- regard Australia as your home and intend to live in Australia indefinitely; or
- be an Australian citizen by birth, descent or by grant of Australian citizenship; or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Even if you were married overseas you can apply for a divorce in Australia provided you meet one of the criteria listed above.
To apply for a divorce, you need to file an application for divorce (together with a copy of your marriage certificate) in the Federal Circuit Court of Australia. You will then be assigned a divorce hearing date between 2-3 months after the date you filed. You may need to provide other documentation together with your application for divorce depending on your situation.
In many circumstances you are not required to attend the divorce hearing and the Order is made in your absence, however if there are children under the age of 18 or there has been a response to the divorce application filed you will need to attend.
You and your spouse do not need to agree to apply for a divorce. You can do this independently. In Australia there is a “no fault” divorce system and provided that you can establish that there has been an irretrievable breakdown of the marriage, it is generally fairly straightforward. You are not required to provide evidence of the circumstances or reasons for the separation.
It is important to be aware that the act of applying for a divorce does not address outstanding parenting, property or maintenance issues. They need to be dealt with separately by either negotiating or by applying to the Court for orders. It is important to be aware that you have 12 months from the date of a divorce order being issued to apply to the Court for property orders if these have not been formalised by this time.