Divorce

Family Law

First the good news – you do not need a lawyer to handle your divorce for you.

If you are confident with filling out forms and can appear before a registrar in court for a brief hearing, we suggest you try doing your own divorce. If you do not have the confidence with court forms or that matter could have some complications with arrangements around children, we can help you with your divorce.

Grounds for Divorce in Australia

Australia has a no-fault divorce system. It does not matter that you or your partner had an affair, have found a new partner, or argue all the time. The Court does not consider the reason(s) the marriage ended.

The only ground for divorce in Australia is that the Court must be satisfied that the marriage has broken down and there is no reasonable likelihood that the parties will get back together. This is called an “irretrievable breakdown”.

You must be separated from your partner for at least 12 months before they can apply for divorce. Often this is easy to prove as you have lived in different properties and obviously lead separate lives. However, you can still be separated and live under one roof. In this situation, the Divorce Application must be accompanied by an Affidavit from you and your former partner if you are making a joint application, or just from the person making the application. The Affidavit should show why you are living under the same roof, where you sleep in the house (not together), no sexual relations, not speaking, division of finances; for example, separate bank accounts, telling family members and friends about the separation and correspondence with government agencies about the separation.

Same-sex married couples are treated the same as other married couples and can apply for divorce if the marriage is recognised in Australia and you meet the requirements for divorce.

Married for under 2 years

Have you been married less than two years?

The two year period is calculated from the date of your marriage to the date of applying to the Court for a divorce (the date you put on the divorce application form). You and your spouse (partner) must also have been separated for at least 12 months before you apply for a divorce.

If you have been married less than two years, you will need to file a counselling certificate.

To arrange counselling, contact the Family Relationships Advice Line (FRAL) on 1800 050 321. If you are unable to attend counselling with your spouse, you will need to file an affidavit as outlined in the fact sheet “Have you been married less than two years?”.

To apply for a divorce, you, or your spouse (partner) must have been separated for at least 12 months and either:

be an Australian citizen
live in Australia and think of Australia as your permanent home, or
usually live in Australia and have done so for at least 12 months before the divorce application.

You can apply for a divorce together (joint application) or on your own (sole application). If you are making a joint application, you will not need to go to court. If you are making a sole application and your children are under 18 and were part of the family prior to separation, you must go to court unless circumstances stop you from attending.

If you file a sole application, you must serve the application on the other party (your partner).

Married overseas

If you were married overseas, you can apply for a divorce in Australia. You or your partner must:

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

Australian citizen or permanent resident of Australia

You are required to file a copy of your Australian passport, Australian citizenship certificate or other proof of your permanent residency.

Not an Australian citizen or permanent resident

You must have been living in Australia for at least 12 months before applying to the Court for a divorce. You will need to provide evidence that you have been resident in Australia for the past 12 months. You can provide this evidence by uploading a copy of your Visa Entitlement Verification Online check.

Copy of your marriage certificate

When you file your Application 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. You will need an affidavit translation of marriage certificate form.

No marriage certificate

You will need to obtain a copy from the relevant authority in Australia or from the country where the marriage took place. If you are unable to obtain a copy of your marriage certificate, you must file an affidavit with the Court explaining why you are unable to provide a copy of the marriage certificate.

Note: The Court will only consider an Application for Divorce without a marriage certificate in very exceptional circumstances.

Separated but still living at the same residence

It is possible for you and your spouse to be separated but remain living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time, even though you were living in the same home.

If you have any query regarding the breakdown of a relationship, please contact us on (02) 91599050 or email us at info@wiltshireandwroughton.com.