Getting a Divorce

Sole ground for divorce

There is only one ground for divorce: the marriage is broken down irretrievably. This is proved if you have separated and lived apart for at least 12 months before applying for divorce.

The court must be satisfied that there is not a reasonable likelihood of cohabitation being resumed. The court may adjourn the divorce and require parties to attend counselling to consider reconciliation. It is very unusual however, that the court requires the parties do so.

What is separation?

Separation means the breakdown in the marital relationship as a whole. There is not one single event that determines separation. Generally, separation is taken to occur when spouses cease to have lived together in the same household. The court may take into account, however, periods of time when the parties are living separately under the same roof. In determining whether the parties have been living separately under the same roof, the court will look at a range of factors to decide if the parties have truly separated or not. These factors include whether the parties have:

  • ceased sleeping together;
  • ceased sharing social activities;
  • ceased sharing finances;
  • advised the other that they are separated;
  • advised other people that they are separated.

If parties resume living together after initial separation, and the resumption of cohabitation is no more than three months, the earlier period of separation may be added to the later period of separation in calculating the necessary 12 months for the divorce.

There is no need to take any steps to register or formalise the initial separation. The court will generally accept the evidence of a party as to that of separation – unless it is disputed by the other party.

How to apply for a divorce

Applications for divorce must be made in the Federal Magistrate’s Court. The application may not be filed until 12 months after the separation. A filing fee is payable, but it may be waived depending on the financial circumstances of the applicant. A copy of the Marriage Certificate must also be filed. If you have lost your Marriage Certificate, a copy can be obtained from the Registry of Births, Deaths and Marriages.

Generally, one spouse makes the application for divorce, and the other spouse is the respondent. The application must be served on the respondent. The correct serving of the application is essential. If there is not proper evidence of the application being served on the other spouse, the court will not grant the divorce at the first hearing date. The hearing will need to be adjourned to allow for proper service of the divorce application.

The divorce application contains details of the marriage including date of separation. It must also contain sufficient details to allow the court to determine whether proper arrangements have been made for any children of the marriage who are under the age of eighteen years. You should be careful in providing these details. The information may become relevant if there are subsequent disputes in respect of arrangements for the children.

If you have been married for less than two years, a certificate from a counsellor must be filed with the divorce application indicating that you and your spouse have considered reconciliation with the assistance of the counsellor. In some circumstances, the court may be persuaded to waive the counselling requirements.

When filed, the divorce application will be given a hearing date in about six to eight weeks. The application must be served on the respondent at least twenty-eight days before the hearing, or forty-two days when the other party is served outside of Australia. The respondent may dispute the divorce application if they disagree with the date of separation or dispute whether appropriate arrangements have been made for the children. In most cases, however, the respondent does not appear at the hearing.

At the hearing, it is necessary that you prove your spouse has been properly served within the required time period. This is generally done by the filing of an Affidavit of Service by the person who served the application on the respondent (which cannot be the applicant). Service can be done by post provided the respondent signs an Acknowledgement of Service in the time period of service. At the hearing, the court may ask additional questions about arrangements for any children.

If the court is satisfied that the application meets the requirements of the Family Law Act for divorce, a Decree Nisi will be granted at the hearing. That Decree becomes final or absolute one month and one day after the hearing.

The court will issue a divorce certificate a few weeks after the hearing.

Consequences of divorce

A divorce has no effect on the rights, obligations, or entitlements of the parties about property, child support, or children.

Any application in respect of property or spousal maintenance can be made either before a divorce or within twelve months after the divorce becomes absolute. After twelve months from the divorce, a property application or spousal maintenance application can only be filed with the consent of the other party or with special leave of the court.

Applications for orders in respect of children can be made at any time.

Divorce does not revoke any wills of the spouses. The divorce, however, will terminate any gifts made in the will by one spouse to the other or any appointment of them as executor, trustee, or guardian. You should review your will following divorce and check whether it still has the effect you desire. For further details, see our other information sheet in respect of Separation and your Will.

Spouses are free to re-marry following the divorce becoming absolute. A marriage celebrant may request to see the divorce Decree prior to a subsequent wedding.

The divorce may effect the entitlement to a spouse under superannuation or insurance policies. It may also effect entitlements for social security, tax benefits, and immigration status.

 

Spouses cannot apply for divorce until they have been separated for at least 12 months.

Separated spouses are not obliged to make an application for divorce as soon as the 12 months has expired. They may stay married for a longer period of time.

Important issues relating to children, property and finances can be resolved immediately after separation, whether a divorce is sought or not.

 

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