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 counselling, 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 include sleeping in separate beds, maintaining separate finances, and not socialising together as a married couple.
A Divorce Order is a formal Order of the Court that has the effect of ending the marital relationship between two people.
Married couples must make an Application for Divorce to the Federal Circuit Court of Australia for a Divorce Order to be granted.
In order for a divorce to be granted you must prove the following to the Court:
- That you are legally married, and this is proved by providing your marriage certificate from the Registry of Births, Deaths and Marriages in support of your divorce application.
- That you have been separated from your partner for at least 12 months and that there are no reasonable prospects of reconciliation. If during the last 12 months you and your partner have lived separated but lived together under the one roof, you will need to provide additional evidence to the Court.
- That either you or your spouse are Australian residents or citizens, or regard Australia as your permanent home.
A divorce hearing is a straightforward affair and, in circumstances where there are no children of the marriage, you are not required to attend the hearing, provided all the abovementioned matters are proven.
If however, there are children under 18 then the applicant to the divorce application is required to appear at Court as the Court needs to be satisfied that there are proper arrangements in place for the care of the children. If it is apparent there are difficulties regarding the care arrangements for any child under the age of 18 years, then a divorce may not be granted until those difficulties are resolved.
Therefore, it is important that if you are served with a divorce application you ensure that the care arrangements for the children noted on the application reflects the current arrangement and that you are in agreement with them.
If you and your spouse agree to make an application for divorce to the Court jointly, then neither of you need to attend Court regardless.
Once your Application for Divorce has been filed with the Court, you are required to serve the application on your spouse. We are able to organise for the application to be served via a process server. It is common that you may not know where your spouse is living or they may be overseas and we are experienced in ensuring your spouse is served with all the necessary documents.
For any questions regarding divorce it is always best to speak to an experienced divorce lawyer.