In Australia, to obtain a divorce, you must demonstrate that you have been separated for a minimum period of a year. If you have lived in separate households during this time, this can be relatively straightforward to demonstrate. If, however, you have been separated under the one roof, it may be important to communicate (preferably in writing) that you have decided the marriage is over. Otherwise, if you tried to seek a divorce and your spouse opposed it, you would need to demonstrate things such as:
- That you are living your lives separately;
- That you are paying for things separately;
- That friends and/or family are aware that you are separated;
- That you are staying in separate bedrooms, etc.
To obtain the divorce, you can fill out an Application for Divorce on your own (your spouse does not need to sign it) or you can fill out the application jointly (and your spouse would sign it). There is a filing fee directly payable to the Court. This amount changes from time to time. Check with us for the current filing fee.
For the Application, you will also require a copy of your marriage certificate. If you do not have a copy of this certificate, you can obtain one from Births, Deaths & Marriages.
If you were married overseas, you will need a copy of that certificate (and a translation from an accredited translator – if is not in English already).
The Court will grant a divorce if you have been separated for a period of 12 months and they are satisfied that your marriage has broken down irretrievably and that there is no reasonable likelihood of reconciliation. There also need to be proper arrangements in place for any children under the age of 18 (although these arrangements do not need to be cemented down and can be changed later on if the court orders or you and the other party agree to changes in the parenting arrangements.
If you have been married for less than 2 years, you are likely to be required to attend counselling to explore the prospects of reconciliation.
Many people believe that the divorce has an effect on finalising your financial or parenting relationship. This is not necessarily the case. If there are kids under the age of 18, the Court needs to be satisfied that you and your spouse have made appropriate arrangements for any children of the relationship under the age of 18. These do not need to be formal parenting orders, the Court simply needs to be satisfied that there are arrangements for the children.
In relation to property, the divorce creates a deadline to finalise your financial relationship. This deadline is a period of 1 year. If you would like to finalise your financial relationship after this period, you would need to seek leave from the Court and outline why you did not finalise your financial relationship with your former spouse within 1 year of your divorce.
When you file your divorce application, please be aware that you are given a hearing date. If you filed a sole application and there are no children of the relationship, you may not be required to attend. If you have filed a joint application and there are children of the relationship, you do need to attend. In all other circumstances, you will need to attend, particularly if you believe your spouse is likely to oppose the divorce. If your divorce is approved on the hearing date, your grant of divorce will be made one month and one day from that hearing. You will not be able to remarry until you obtain that certificate outlining your grant of divorce.
If you have any questions relating to divorce, please do not hesitate to speak to one of our lawyers. You can obtain our contact details by clicking here.