Divorce is an incredibly personal decision. Whether it’s an issue of incompatibility, abuse or unfaithfulness, a married individual or couple can apply for divorce to “legally” end their marriage.
If your relationship has reached its breaking point, here are the things you need to know before applying for a divorce in Australia.
The Australian law on divorce
The Federal Circuit Court of Australia has the jurisdiction and power to deal with an application for dissolution of marriage (i.e. divorce).
Under Part VI of the Family Law Act 1975, a divorce order will only be granted if the Court is satisfied that the marriage “has broken down irretrievably”. That is, if it is proven that you and your spouse are living separately for at least 12 months prior to filing for a divorce and there is no reasonable likelihood of getting back together.
The Court’s decision is guided by the principle of no-fault divorce, which means it does not consider why the marriage failed – it simply recognises that the marriage is over. If there are children from the marriage who are aged under 18, the divorce will only be granted if the Court is satisfied that proper arrangements have been made for them.
Are you eligible for a divorce in Australia?
You can apply for a divorce in Australia if either you or your spouse satisfies at least one of the following:
- An Australian citizen by birth, descent or by grant of an Australian Citizenship. If you were born outside the country, at least one of your parents must be an Australian citizen and your birth was registered in the country.
- Are lawfully present in Australia – you regard Australia as your home and intend to continue living in the country indefinitely.
- Live in Australia for 12 months immediately prior to filing for divorce.
If you have been married less than two years, you are required to try marriage counselling before pursuing a divorce. However, this step may be skipped in some situations, such as when you cannot find your spouse or you experience domestic violence. In these cases, you will need to file an affidavit (i.e. a written statement of evidence) to explain your particular situation.
What are the requirements?
You need to accomplish the following when filing for divorce in Australia:
- A completed Application for Divorce form (available online at www.familylawcourts.gov.au)
- A copy of your citizenship certificate or passport (if required)
- A copy of your marriage certificate
- Payment for filing fees. The rate changes from time to time, so you might want to check the current fees and costs here. You may apply for a reduced filing fee in case of financial hardship.
The application process
You may apply for divorce on your own (sole application) or together with your spouse (joint application). The process will be slightly different for each case.
It is important that you complete the application accurately. Once completed, your application must be signed in the presence of a Justice of the Peace (JP) or lawyer. Then, you must “serve” your spouse with a copy of your Application for Divorce and file proof of service with the court.
In the case of a joint application, both you and your spouse must sign the document, although not necessarily at the same time or with the same JP or lawyer.
The divorce process starts once you lodge your documents with the court. You can do this in person, by post, or online. You may or may not attend the court hearing, but your attendance is a MUST if you are a sole applicant and there are children under 18 involved.
If the court grants your divorce, it will take effect one month and one day after the order is made.
Seeking legal advice
You may prepare your own divorce application or get a lawyer to do it for you. As every case is different, you may want to seek legal advice to help you understand how the law applies to your case as well as know your rights and responsibilities when applying for a divorce in Australia.
At BTF Lawyers, we can help you manage your divorce application and sort out any issues every step of the way. Feel free to give us a call or contact us through our website.