Yes, you can if ...

If you were married overseas, you can still 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.

 

Same sex couples

Until 2018, Australia did not recognise same sex marriage. However, same sex marriage is now legal and therefore, so is same sex divorce. If you were married as a same sex couple overseas, you are able to divorce in Australia under the same criteria as any other married couple.

 

No-fault divorce since 1975

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.

Getting a divorce is a completely separate legal process to splitting up your property or formalising arrangements for any children of the marriage.

To apply for a divorce you need to complete an Application for Divorce and file it at the Court with a copy of your marriage certificate.

If your marriage certificate is not in English, you need to file an English translation of it together with an affidavit showing the person who translated it was accredited.

Foreign Document Translation - The National Accreditation Authority for Translators and Interpreters Ltd (NAATI) is the national standards and accreditation body for translators and interpreters in Australia.

 

Other considerations

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.

Your divorce will not be granted until you have lived apart for at least one year. It is possible to live together in the same home and still be separated. This is called living separately under the same roof.

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

Read more:

Divorce – Step by Step
What is an affidavit?
Forms and fees
How to avoid divorce legal fees now

 

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Christine Weston
Founding Director - Divorce Resource

 

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