Australia has a system of “no fault divorce”, which means that the Court does not consider the reasons behind the breakdown of a marriage, only the fact that the marriage has broken down irretrievably.
To apply for a divorce in Australia you must be separated from your spouse for a period of at least 12 months, or if you have been married for less than 2 years, then you will usually need to attend counseling, and obtain a certificate that you have done so, to apply for divorce.
You can be separated from your partner and still live under the same roof. The fact of being “separated” does not mean only that you are living in separate houses. There may be a number of reasons that you and your spouse continue to live under the one roof even though you are separated, such as financial pressures or issues relating to the care of any children.
If you and your spouse have been separated, but lived under the one roof for any period during the 12 months since your separation, then you will need to satisfy the Court in your Application for Divorce that you and your spouse were in effect leading separate lives for the past 12 months. Examples that may apply to you include sleeping in separate beds, maintaining separate finances, and not socialising together as a married couple.
If you and your spouse have children, the Court must be satisfied that there are proper arrangements in place for the care of the children, for example, an agreement regarding spending time with each parent, or there are Court Orders in place, or Court proceedings are ongoing.
Whether you make a sole application for divorce or a joint application with the agreement of your spouse, you will only need to attend the divorce hearing if you have been married for less than 2 years or there are children of your marriage under the age of 18 years.
You may also wish to attend the hearing if you are making a sole application and the other side has filed a response disputing certain facts, such as the date of separation. Otherwise, your divorce application will generally proceed “on the papers”, without you needing to be present.
If you are granted a Divorce Order at your divorce hearing then your divorce becomes final one month and one day after the hearing.
A Divorce Order is a legal document that marks the end of your marriage. However, this does not necessarily finalise your separation, as you may still need to organise parenting arrangements or a property settlement.
In Family Law matters, a divorce is separate from parenting arrangements or a property settlement.
You may settle parenting and/or property matters without being divorced, or you may get divorced and have not yet settled parenting and/or property matters. However, you must be aware that once you are divorced, you only have a period of 12 months to finalise a property settlement.
It is important that you consider not only your divorce but other matters relevant to your separation such as a property settlement or formal parenting arrangements.