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A divorce is an Order of the Court that legally ends a marriage. In Australia, you are able to apply for divorce if either you or your spouse:
- regard Australia as your home and intend to live in Australia indefinitely; or
- are 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.
When can I get divorced?
You can apply for a divorce after you have been separated for at least 1 year. To be eligible for a divorce you must also swear that there is no reasonable likelihood that you will get back together with your spouse. Australia has a “no fault” system for divorce. This means you don’t have to justify why you should get a divorce or say whose fault it is.
What if we still live together?
You are still able to apply for divorce if you have separated but have decided for one reason or another to continue living under the one roof. The key is that you consider the marriage to be over, have not been living as husband and wife for at least 1 year and do not intend to live together as husband and wife in the future. You will need to provide an affidavit to the Court to confirm this if you are still or were living together before applying for a divorce.
Can my spouse refuse to get divorced?
If you have been separated for at least 1 year, there are very limited grounds to oppose an application for divorce. Even when a person responds to an application for divorce, it is usually granted by the Court if the Judicial Registrar is satisfied that you have been separated for the required period.
Applying for divorce
You can apply for divorce either by yourself or jointly with your spouse.
If you make the application by yourself, you will be the applicant and your spouse will be the respondent. We will help you prepare the application, file it with the Court and then serve your spouse with a copy of the application. We will need to prove to the Court that your spouse was properly served with the application.
If you and your spouse make a joint application to the Court you both sign the application for divorce and we can file it with the Court.
What is in the application?
In your application you will need to provide evidence of your marriage (marriage certificate), copies of any Court Orders that have been made, including for child arrangements, property settlement or family violence intervention orders (if relevant). If you have children under the age of 18, you will also need to provide information about them, including where they live, how often they spend time with the other parent, where they attend school, information about their health and how they are financially supported.
Do I need to attend Court?
Either party can attend Court for the hearing if they wish. Hearings are generally conducted by telephone. If you make a sole application and you have children under 18 years old you must attend the hearing. We will appear on your behalf at the hearing.
How long does it take to get divorced?
Obtaining a final divorce order does not happen as quickly as most would like. It can take 4-6 months from the date of filing the application. If you don’t know where your spouse is or there are difficulties serving the application on them it can take longer. Once your divorce application is granted by the Court your divorce becomes final after 1 month.
It is important to note that although the granting of a divorce recognises the legal end of the marriage, divorce is a separate process to issues such as property settlement, spousal maintenance and parenting arrangements for children. You must have finalised your property settlement within 12 months of your divorce becoming final.
Do you have a Will?
Once you have separated it is a good idea to review and update your Will. Getting legal advice before you do this will avoid headaches down the track. For example, who you would like to appoint as executor/s of your Will and what you would like to happen to your assets when you pass away. Also, think about whether you have any powers of attorney in place. If you have appointed your former spouse to be your financial or medical power of attorney and that is no longer appropriate, you should consider revoking those powers of attorney and making a new one.
