How to get divorced in Australia

Thursday, 2 August, 2018

Firstly, it's important to understand that getting a divorce is only one part of legally wrapping up a marriage.

There is a separate legal process for splitting up your property and finances and also for making arrangements for any children of the marriage.

Eligibility

Australia adopted a ‘no fault’ policy regarding divorce in the Family Law Act (1975). Since then, for eligibility to divorce in Australia you no longer have to have any other grounds for divorce other than to prove that at least one of you believes the marriage has irretrievably broken down and that you have lived separately for at least one year.

You can apply for a divorce in Australia if either you or your spouse;

are an Australian citizen by birth, descent or by grant of Australian citizenship;
regard Australia as your home and intend to live in Australia indefinitely; or
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

What is living separately?

In some instances, a couple may remain living in the same house but ‘separate’ and still be eligible for divorce. This is known as ‘separation under the one roof’.

If you lived separately but under one roof for any portion of the 12 months since you separated, you will need to provide this information to the Court in an affidavit.

The one year of separation need not have been continuous. If after you have initially separated, you reconciled for periods of less than three months at a time, the twelve-month separation period may be calculated using the time before and after the breaks.

If this applies to you, you will need to complete an affidavit to accompany your application.

When there are children involved

If there are children of the marriage, you will need to satisfy the court that adequate care and financial provision has been made for the children before granting a divorce.

This does not mean you have to have parenting orders in place but it does mean the court needs to be satisfied that somehow between the two of you, the children are safe, cared for and are being financially provided for.

Married less than 2 years?

If a couple has been married less than 2 years, they will be required to participate in prescribed marriage counselling before being eligible to apply for a divorce.

If you satisfy the above requirements, a divorce Application can be prepared and filed on the Commonwealth Courts Portal.

Filing for divorce

You file for divorce on the Commonwealth Courts Portal. You can lodge a joint application where you both complete affidavits, have your application witnessed by a JP and file the application or just one of you can file.

If you file a joint application then there is no need to serve the filed documents on the other person.

Sometimes, one person wants to proceed with the divorce application on their own. If you are the person who files the application, you are called the Sole Applicant and your ex-partner becomes the Respondent. Once you have filed the application, you must serve the filed application on the other party. You cannot give the papers to them yourself. They must be served by a person who is over 18 and can identify the respondent.

Read more: Serving divorce papers: a quick how-to guide