Divorce is the legal dissolution of a marriage. It occurs when the Federal Circuit Court of Australia makes a divorce order in respect of your marriage.
A divorce has legal consequences with respect to your rights and obligations under the Family Law Act 1975, as well as other legal consequences. For most of our clients, it is an important step to “end” their marriage legally, psychologically and emotionally.
An Application for Divorce is lodged in the Federal Circuit Court of Australia and it can be made by both spouses together (a joint application for divorce) or it can be made by only one (1) spouse.
If you are thinking about applying for a divorce or have questions, our family lawyers can help you. We understand this is a delicate matter, and we manage this by approaching it with sensitivity, tact and respect. Ask about our fixed fees for divorces.
You can apply for a divorce in Australia if either you or your spouse meet one of the following requirements:
- you regard Australia as your home and intend to live in Australia indefinitely;
- you are an Australian citizen by birth, descent or by grant of Australian citizenship;
- you ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to have been separated from your spouse for 12 months before you can apply for a Divorce, and the marriage needs to be irretrievably broken down (i.e. the separation is final – there are no prospects of reconciliation).
If you and your spouse have been separated for 12 months, but have remained living at the same home, special evidence is required so that you are able to satisfy the Court that there has been a genuine separation for 12 months. This is usually in the form of a number of Affidavits.
If there are children of the marriage under the age of 18 years, the Court will need to be satisfied that there are appropriate arrangements in place for the children in terms of their care and child support. This does not mean that there has to be a permanent/final arrangement in place.
A joint application is made by the spouses together, whereas a sole application is only made by one spouse.
If a sole application for divorce is filed, it will need to be formally served upon the other spouse, and evidence provided to the Court that the application was served.
If there are children of the marriage under the age of 18 years:
- no attendance at Court is required if the application is a joint application;
- attendance at Court is required if the application is a sole application.
You will need to attend Court if:
- you are the sole applicant and there are children of the marriage under the age of 18 years;
- you are the sole applicant and you have been unable to serve the other party;
- you object to the Divorce application or otherwise wish to respond to anything contained in the application;
- you have filed a Response to the Divorce application;
- your spouse has filed a Response to the Divorce application; and/or
- you wish to raise an issue relating to the Divorce application with the Court.
You will not need to attend Court if:
- there are no children of the marriage under the age of 18 years;
- it is a joint application for divorce; and/or
- your spouse is the sole applicant and there are children of the marriage under the age of 18 years.
Separation under one roof occurs where spouses separate (i.e. at least one party has communicated the separation to the other party and the marriage has irretrievably broken down) but have continued to live under the same roof for a period of time after separation.
There are many reasons why people continue to reside together after separation, although it is usually only for a short period of time, such as until further discussions have occurred as to who will leave the home, what the financial arrangements will be and/or what the parenting arrangements will be.
If you and your spouse have been separated for 12 months but have continued to live under the same roof for a period of time after the separation, you will need to provide the Court with supporting evidence of the separation. This is usually in the form of an Affidavit by you and/or your spouse, as well as 1 or 2 other independent persons who can attest to the fact that you and your spouse have genuinely separated.
If the application is a joint application, then you and your spouse will need to each provide an Affidavit attesting to the separation.
If the application is a sole application, then the applicant will need to provide an Affidavit attesting to the separation, as well as an Affidavit of 1-2 independent persons who can attest to the genuine separation.
The Affidavits will need to address matters such as:
- change in sleeping arrangements;
- reduction in shared activities, spouse “dates” or socialising together;
- reduction in performing household duties for each other;
- separation of finances;
- any other matters that show the marriage has broken down, such as informing family and friends of a separation;
- why you continued to live in the same home following separation and what intention, if any, you have of changing the situation;
- living arrangements you made for any child/children of the marriage under 18 years during the time you were living under one roof; and
- what government departments you have advised of your separation if you receive a government benefit (e.g. Centrelink or Child Support Agency). If correspondence about your separation has been received from such departments, those documents are to be attached to your Affidavit.
Getting divorced has an impact upon a number of legal matters, including:
- your right to apply for a property settlement or spouse maintenance order (a 12 month time limit applies once the order is made);
- your government entitlements (e.g. Centrelink payments);
- your ability to remarry;
- protection of your assets (i.e. they may be the subject of an application if you have not divorced or had a property settlement);
- details in your divorce application may effect arguments available to you in property settlement proceedings/negotiations;
- facts contained in your divorce application may be used in your parenting proceedings; and
- parts of your Will may become invalid.
The decision to apply for a divorce is hugely personal. For some people, applying for a divorce is the last step they take in their Family Law matter, whilst for other people, obtaining a Divorce is a priority for them.
We provide our clients with expert advice, options, pathways and solutions in family law matters.