Australia has a no-fault system for divorce. The Court does not consider which spouse was at fault in the marriage breakdown and the only ground for divorce is that the marriage has “broken down irretrievably” and there is no reasonable likelihood of resuming the marriage.
In order to grant a divorce order, the court must be satisfied that you and your spouse have separated, and have lived separately for a continuous period of not less than 12 months preceding the date the Application for Divorce was filed. If you and your spouse remain living under the same roof, it is possible for the Court to find you and your spouse are separated, and grant a divorce order.
You are eligible to apply for divorce under the Family Law Act 1975 if you or your spouse:
are an Australian citizen by birth, descent or grant of citizenship; or
regard Australia as your home and intend to live indefinitely in Australia; or
ordinarily lives in Australia and have lived in Australia for 12 months preceding the date the Application is filed.
You can make a joint Application for Divorce with your spouse, or an application can be made individually. The Court filing fees associated with a joint or sole application are the same.
If a sole application is made, and there are children under the age of 18, the person who filed the application must attend the divorce Hearing at Court. If a joint application is made, or there are no children under the age of 18, you can elect to not attend the divorce Hearing and the Divorce Order can be made in the parties’ absence.
If, at the Hearing, the Registrar grants the divorce, the divorce comes into effect one month and one day after the Hearing.
It is important to understand that a divorce only allows for you to re-marry. Any disputes about parenting, property and/or spousal maintenance must be made in a separate application to the Court.
One of the most crucial things to remember is that you have 12 months from the date the divorce order becomes final to make an application to the Court for property matters. If you fail to bring such an application, you must seek leave from the Court to make an application in relation to property matters. Once the 12 months has elapsed, there is no guarantee the Court will grant leave.
If you have separated and need assistance in relation to filing an Application for Divorce with the Court, Pigdon | Norgate can assist you and provide you with further advice.