Jun 17

How to get a divorce in Australia

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How to get a divorce in Australia

Under Australian law, divorce is the process by which a legal marriage comes to an end and parties are free to pursue another marriage if they want to. Attempting to remarry while divorce proceedings are still ongoing constitutes an illegal act of bigamy.

The only legal requirement to get a divorce in Australia is to prove to the court’s satisfaction that you and your partner have had an ‘irretrievable breakdown’ in your relationship. ‘Irretrievable’ means that there’s absolutely no reasonable expectation that the relationship can be salvaged.

The basic standard to prove that an irretrievable breakdown has occurred is that both partners have lived separately for at least 12 months. If, for whatever reason, you and your spouse continue to live in the same house you will need to prove the higher standard of ‘separation under one roof’.

Proving separation under one roof requires you to demonstrate the you and your spouse have ceased functionally living together as a married couple. This is usually proven by showing that you are now sleeping in separate bedrooms and via the testimony of friends and relatives.

You can apply for divorce after the minimum separation period even if your spouse does not want to separate. In cases where issues like domestic violence are present, this minimum separation period can be reduced in order to expedite matters.

When getting a divorce in Australia, there is no legal consideration for who is ‘at fault’ for the separation. This means that the fact your or your partner was unfaithful or failed to meet an arbitrary standard of being a good spouse is completely dismissed during all proceedings.

There is nothing forcing you to get a divorce in Australia after you separate from your spouse, but it is prudent to do so because continuing to be legally married can affect your legal responsibilities as well as matters of inheritance. It is important to get legal counsel if you are unsure of how continuing the marriage will affect you.

How to apply for divorce in Australia

You are able to apply for divorce in Australia once you have completed the 12-month separation period and are:

  1. An Australian citizen
  2. Actively live in Australia and regard it as your permanent home
  3. Ordinarily reside in Australia and have lived in the country for a minimum of 12 months prior to making your application.

What if we briefly get back together?

If you and your spouse get back together before the 12-month minimum separation period ends, then there is a 3-month window in which you can separate again and restart the clock from where you left off. If you get back together for longer than 3 months, then any new separation will need to start the clock back from 0 months.

Do I need a lawyer?

You don’t need a lawyer in order to apply for divorce, but they can help you in a number of ways such as serving papers to your spouse and ensuring you have filled out all forms correctly including any declarations you need to make. While a lawyer isn’t essential for the bureaucratic process of getting a divorce in Australia, they become necessary when dealing with issues related to the breakdown of a relationships such as property settlement and child custody.

The process of how to apply for divorce in Australia

You can either make a joint application with your spouse or a sole application on your own. If you are making a joint application, then you don’t need to go to court as it is clear you both are on the same page regarding the desire to separate.

If you have children under 18 in the family and make a sole application, then you need to go to court unless some special circumstance can be proven to be preventing your attendance. There is a filing free for divorce applications which may be reduced for you depending on certain factors.

If you submit a sole application, then you need to arrange for your spouse to be ‘served’ with a copy of the application, so they are informed of your decision to divorce them. You are not allowed to personally serve your spouse, but you can have your solicitor do it or do it by mail.

You should leave some time between your application and the actual date of divorce so that there is no confusion about your spouse’s receivership of the notice.

At your hearing, you will be granted a divorce order. The divorce only becomes final 1 month following the hearing, at which point the courts will send you a certificate confirming the end of the marriage.

If you need help understand how to apply for a divorce in Australia or just need some legal counsel, don’t hesitate to contact us today!