Divorce in Australia is governed by the Family Law Act 1975, and an application for a divorce under the Act is made to the Family Court. The court will only consider an application for divorce if one of the parties has a connection with Australia through residence, birth or citizenship.
The Basics to Applying for a Divorce
The husband and wife can apply together for a divorce in a joint application, or one of the parties can apply alone. This is known as a sole application.
The Family Law Act established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended. There is only one ground for divorce – that the marriage has broken down irretrievably and the parties are unlikely to get back together or reconcile.
What Proof of Separation is Needed?
In a no-fault divorce, there is no need to prove that one party is at fault. However the Family Court does need proof that the parties have separated and have lived apart for a continuous period of at least 12 months immediately before the application for divorce is filed, and that they will not be reconciled.
Even if the parties are living in the same house but live separate lives under the same roof, they can still apply for a divorce and meet the requirements for the 12 month separation. They will, however, need to prove that they have in fact separated. This can be done by making a sworn statement, known as an affidavit, to the effect that the parties are indeed separated even though they may live under the same roof. This will need to be verified by an independent person swearing a second affidavit to that effect.
Such an affidavit would contain information that, by way of example, the couple sleep in separate bedrooms; have ceased sexual activity; hold separate bank accounts; act in such a way that people they know, such as friends and family, can see that they are separated and the marriage has ended; and they don’t go out or attend social functions together.
If the marriage is less than two years it is called a “short marriage”. The two year period is calculated from the date of the marriage to the date of the divorce application to the Family Court. Before they can apply for a divorce, parties to a short marriage are required to attend formal professional counselling to determine if there is any chance of reconciliation. The counsellor must issue a certificate which has to be lodged with the application for the divorce before the Family Court will grant a divorce to parties to a short marriage.
Opposing an Application for Divorce
If the couple have been separated for more than 12 months, there are few opportunities to oppose a divorce application. However it can be opposed if a party alleges that there has not been 12 months separation as alleged in the application, or the court does not have the right to consider the application, e.g. if neither of the parties has any connection with Australia.
Do The Couple Have To Attend Court?
If there is no child of the marriage under 18 or if the parties have made a joint application for divorce, they are not required to attend the court hearing. However if a party has made a sole application and there is a child of the marriage under 18, the applicant is required to attend the court hearing unless circumstances prevent them from attending, in which case, other arrangements need to be made with the court. In all cases however if there are children under 18, the court needs to be satisfied that appropriate arrangements have been made for them (see below). In most cases, the divorce order takes effect one month and one day after the divorce is granted by the court.
Children, Property and Maintenance
The granting of a divorce does not decide issues relating to property and maintenance or parenting arrangements for children of the marriage. However the court needs to be satisfied that appropriate arrangements have been made for children under 18. Generally it is sufficient to advise the court of current arrangements and what is proposed for the future, whether by negotiating an arrangement or seeking an order from the court if the couple cannot agree.
If the parties want to make arrangements about property and maintenance, they can make an agreement and file it with the court, or seek orders from a court if they cannot reach agreement. This should be done within 12 months of the divorce.
Go to federalcircuitcourt.gov.au for helpful resources relating to divorce applications.
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