Divorce

Divorce is the formal legal ending of a marriage. It is separate and distinct from property settlement and parenting arrangements after the breakdown of a marriage.

Unlike resolving parenting or property matters, the divorce process is relatively straightforward. Applications for Divorce are now completed online. The Family Court of Australia has an online Divorce Kit that you can access here.

Grounds for divorce

To obtain a Divorce Order, you must be able to prove that:

1. you are married (this is done by providing a marriage certificate);
2. you have been separated from your former partner for at least twelve months and one day;
3. your marriage has broken down and there is no reasonable likelihood that you will get back together (also defined as the ‘irretrievable breakdown’ of the relationship); and
4. you or your spouse are Australian residents, Australian citizens, or regard Australia as your permanent home.

Since the introduction of ‘no fault’ divorce in 1975, there are no other grounds that must be met in order for a divorce to be granted.

Separation under one roof

Separation can occur even if the parties continue to live under the same roof (in the same household).

Parties must ‘reasonably satisfy’ the court that even though they remain living under the same roof, there is an intention to separate and that the relationship has irretrievably broken down. Some of the factors the court will consider include sleeping arrangements, household chores, shared meals, how the parties represent themselves (as separated or as a couple) and how they take holidays (eg, together or separately).

Where this has occurred, the Applicant must file extra documents with their Application for Divorce, including an Affidavit from an adult third party witness with knowledge of the parties’ separation under one roof.

Resumption of cohabitation

One of the grounds of divorce is that the parties must be separated for at least twelve months and one day. However, there is no requirement that this time be continuous.

Parties can resume cohabitation for up to three months without invalidating the prior period of separation. If parties resume cohabitation for a period of over three months, they will have to restart the twelve month separation period.

Short marriages (less than two years)

If parties have been married for less than two years, there are additional requirements that must be met in order for the court to grant a divorce.

When filing the Application, the parties must file a certificate signed by a marriage counsellor that the parties (both of them) have considered reconciliation.

The court can also dispense with this requirement if they are satisfied of the existence of ‘special circumstances’ that remove the requirement for a certificate (eg, family violence). This is only done in very limited circumstances.

Property settlement, parenting arrangements and other considerations

It is important to note that the granting of a Divorce Order has flow-on effects (some with time limitations) that you should discuss with a lawyer before applying for a divorce.

The granting of a Divorce Order does not:

• resolve parenting matters;
• resolve property settlement;
• automatically amend or override Wills or Powers of Attorney; and/or
• amend or override any insurance policies.

Parties to a marriage can apply for a property settlement at any time after separation, however, once they have been granted a Divorce Order, they only have twelve months to make an application to the court for property settlement.

After that time, an application for a property settlement can only be made if:

• your ex-partner agrees; or
• with permission from the court if certain grounds are satisfied.

Due to these time limits, it is generally recommended that you formalise property settlements and other ancillary financial matters before applying for a divorce.

Annulment of marriage

An annulment, or a Decree of Nullity, can be granted on the grounds that the marriage is void (not valid or legally binding).

A ‘void’ marriage can include:

• Bigamy;
• Prohibited relationships of parties as defined (for example, brother, sister, ancestor or descendant); or
• Lack of consent as a result of fraud, duress, mistaken identity of a party, mistaken identity as to nature of the ceremony, inability of a party to understand the nature and effect of a marriage ceremony, or either party not being of a marriageable age.

In Australia, annulments are not common and it is usually difficult to have a marriage annulled. The Family Court of Australia will only make this declaration in very limited and rare circumstances.

How we can help

The separation process can be stressful. We can help take a lot of the confusion and bureaucracy out of the process of applying for divorce.

Contact us to discuss your circumstances and to determine the best way forward.