The Family Law Act 1975
The Family Law Act 1975 established the principle of no-fault divorce in Australian Law.
When granting a divorce, the Court does not consider why the marriage ended and the only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together.
Children & financial matters do not need a divorce to be finalized
The granting of a divorce does not determine issues of financial support, property distribution or arrangements for children. It simply recognizes that the marriage has ended.
Can i apply for a divorce?
You can apply for a divorce in Australia if either you or your spouse:
regard Australia as your home and intend to live in Australia indefinitely, or are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Living under the same roof can be living 'separately'
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
Seeking legal advice
You can obtain legal advice to understand your rights and responsibilities before applying for a divorce or other applications in relation to a divorce. A lawyer can help explain how the law applies to your case.
What a court considers in divorce applications
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.
The only grounds for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
What will a divorce cost?
There is a filing fee for divorce applications and your lawyer will also charge a fee.
In some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee.
Can i oppose a divorce application?
If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:
there has not been 12 months separation as alleged in the application, or the Court does not have jurisdiction.
If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date.
You need to set out the grounds on which you seek the dismissal in the Response to Divorce.
If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.
What if the application has errors of fact?
If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce.
You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You do not need to attend the hearing.
When should i file the response to divorce?
If you want to file a Response to Divorce, you need to file it:
if served in Australia - within 28 days of the application being served on you, or
if served outside of Australia - within 42 days of the application being served on you.
Do i have to attend the divorce hearing?
No children under 18
If there is no child* of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.
Joint application with children under 18
If you have made a joint application, you and your spouse are not required to attend the court hearing (even if there is a child of the marriage aged under 18).
Sole application with children under 18
If you have made a sole application and there is a child of the marriage aged under 18 years, you (the applicant) are required to attend the court hearing unless circumstances prevent you from attending (see below).
If there is no Response to Divorce, the other party is not required to attend, although they may do if they wish.
If a respondent has completed and filed a Response to Divorce, but does not oppose the application, he or she does not need to attend the hearing.
If a respondent has, in a Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.
A child of the marriage includes:
- Any child of you and your spouse, including children born before the marriage or after separation
- Any child adopted by you and your spouse, or
- Any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.
We are getting divorced - will decisions about future arrangements for our children, property and maintenance be made at the same time?
The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:
- Make an agreement with your spouse and file it with a court, or
- Seek orders from a court, where you and your spouse cannot reach an agreement.
For parenting cases, you also have the option to make a parenting plan. If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court's permission to apply.
We can provide you with more information on request.
I have applied for a divorce, is it safe to set a wedding date for my new marriage?
You should not make firm plans to marry on a specific date until the divorce order is finalized. You may, however, complete and lodge a Marriage with an authorized celebrant before the divorce order is finalized.
If you intend to remarry, you must lodge the Notice of Intended Marriage with an authorized marriage celebrant at least one month before the date the marriage is solemnized, and comply with other requirements of the Marriage Act 1961. The authorized celebrant must sight a copy of the divorce order before the wedding can take place.
In most cases, the divorce order takes effect one month and one day after the divorce is granted. You should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.
We want to divorce but have been married less then two years. We understand we have to do certain things, what are they?
If you have been married less than two years you will need to file a counseling certificate. To obtain a certificate you will need to attend counseling. The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce.
You and your spouse must also have been separated for at least 12 months before applying for a divorce.
I married overseas - can i get a divorce in australia?
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
- Regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
- Are an Australia citizen by birth or descent
- Are an Australia citizen by grant of an Australia citizenship
- A safeguard and financial protection for both parties
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You must provide 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, and an affidavit from the translator.
I got divorced overseas - is it recognized in australia?
You can apply for a divorce overseas. Australia will recognize a divorce if it was effected in accordance with the laws of that country.
*Note: Text from - Federal Circuit Court of Australia website.