WHO CAN APPLY FOR A DIVORCE?
Either party to a marriage can apply for a divorce if they have been separated for a period of at least twelve months.
DO I HAVE TO PROVE FAULT?
No. The Family Law Act came into operation in 1976 and since that time it has no longer been necessary for a party to show that the other party is at fault to obtain a divorce in Australia. The only question for the Court is whether the marriage has broken down irretrievably.
DO I HAVE TO LET MY FORMER SPOUSE KNOW THAT I AM APPLYING FOR DIVORCE?
Yes. You must serve a copy of your application on the other party personally, or by registered post. You must serve a copy of your application on your former spouse at least twenty-eight days before the hearing, or if they live overseas, at least forty-two days before the hearing.
CAN WE STILL DIVORCE IF WE HAVE CHILDREN?
Yes. But if you have children under the age of eighteen, the Court must be satisfied that they are being properly cared for before granting a Divorce. You will need to show the arrangements for your children, including: child support payments, contact arrangements, housing arrangements and educational arrangements. However if there are deficiencies in your arrangements, the Court may still grant your Divorce if there are special reasons why the divorce should still be granted.
WE ARE SEPARATED, BUT STILL LIVE TOGETHER. CAN I STILL GET DIVORCED?
Yes. You may still apply for a divorce if you can show that you have been living separately and apart for at least twelve months under the one roof. You will need evidence that you and your spouse no longer shared the usual activities of marriage such as sleeping together, eating meals together, performing domestic services for each other, sharing finances and going out together.
WE SEPARATED TWELVE MONTHS AGO, AND RECONCILED BRIEFLY BUT IT DIDN’T WORK. CAN I STILL GET DIVORCED?
Yes. If you and your former spouse lived together for up to three months, the minimum period of twelve months for separation is extended. This means that if you reconciled one month, you are not able to file your application until you have been separated for thirteen months. If you live together for more than three months after separation, you will have to be separated for a full twelve months before you may file an application for divorce.
CAN I DIVORCE IF WE WERE MARRIED FOR LESS THAN TWO YEARS?
Yes. But if you have been married for less than 2 years and want to apply for a divorce, you and your spouse must attend counselling with an approved family and child counsellor to discuss the possibility of reconciliation before filing your application. The counsellor must complete and sign a form to attach to your application.
DO I HAVE TO BE AN AUSTRALIAN CITIZEN?
No. But you or your spouse must have resided in Australia for at least twelve months before filing your application.
WHAT EVIDENCE DO I NEED?
You must have a copy of your marriage certificate. If your marriage certificate is not in English, you will need to have it translated.
HOW MUCH DOES IT COST?
Your divorce application must be filed in the Family Court of Australia or the Federal Magistrate's Court of Australia. There is a filing fee payable in each Court when filing your application. You may apply for an exemption or a waiver of this fee dependant upon your financial circumstances. You will also be responsible for your legal fees.
HOW LONG DOES IT TAKE?
It takes about three months for a divorce to be finalised. A divorce becomes final or “absolute” one month and one day after the decree nisi has been granted in Court, unless there are special circumstances to vary this. You may not remarry until your divorce becomes “absolute”.
DO I NEED TO BE AT COURT?
If you file a joint application and have children or no children, the application may be dealt with in your absence if you mark the box electing not to attend Court. If you do not mark the no box, you must attend Court. If you do not make a joint application, the Court may still require you to attend. If your spouse defends the divorce application or files a notice objecting to it being heard in your absence, you must attend Court. If you cannot satisfy the requirements of your application, you should attend so that the Court may obtain more information about your application.
DO I NEED A SOLICITOR?
If you are unsure about whether or not you are eligible to apply for a divorce, you should always seek advice from a family law solicitor.