Divorce and Separation

What is a divorce?

A marriage is defined as a union between two people to the exclusion of all others voluntarily entered into for life. A divorce is a dissolution of a marriage.

An application for a divorce is relatively simple and you can often complete it by yourself. However, there are important tips and traps of getting a divorce which we can advise you on. These tips and traps will ensure that a divorce application does not have any negative impact on your family law property settlement, spousal maintenance claim or parenting matter.

Am I eligible for a divorce?

To be eligible for a divorce, one of the spouses must:

1. Be an Australian citizen, be domiciled in Australia or be ordinarily resident in Australia or must have been for one year prior to the filing of the application
2. The court must be satisfied that the parties are legally married
3. The marriage has broken down irretrievably
4. The parties have separated and lived separately and apart (this can happen under the one roof) for a continuous period of not less than 12 months
5. That there is no reasonable likelihood of cohabitation being resumed by the parties.

For parties who are married for less than 2 years, they are required to file a counselling certificate with their application for divorce or an affidavit setting out the reasons counselling was unsuitable.

How to apply for a divorce?

You can apply for divorce by filing our the Divorce Application and file it on the Federal Circuit Court of Australia’s online portal. You can find more information about this here

Do I have to attend court?

1. Court attendance is only required if you have filed a sole application (without the consent of your spouse) and there is a child of the marriage aged under 18 years at the time of filing or you have indicated you wish to attend court.
2. You should also attend court if you are applying for an order for substituted service or a dispensation of service in the circumstances when you cannot find the respondent to serve the court documents.
3. We would also recommend you attend court if you are required to provide additional affidavit material to explain the circumstances such as separation under the same roof / married less than two years and other situations which may impact on the outcome of your matter.
4. If it is difficult for you to attend in person you can ask the court to appear by telephone, you need to this as soon as possible after you have filed the application. You should request this using the appropriate form on the court’s website which can be filed electronically.

When does the Divorce Order take effect and are there any time limitations?

1. The Divorce Order will take effect one months and one day after the order is granted by the court. This is when you will be legally divorced.
2. If you have been granted a divorce order and you have not yet finalised your property settlement by way of a court order or financial agreement, you have 12 months from the date of the divorce order was granted to apply to the court for a property settlement.