The Family Law Act 1975 (Cth) (“The FLA”) is the legislation that governs the legal process of filing for and obtaining a divorce. An application for divorce can be filed either individually (as a sole applicant) or together (as joint applicants).
The FLA has established a principle of ‘no-fault divorce’, which broadly means that a court will not consider which partner was at fault in the marriage breakdown. As such, the only ground for divorce in Australia is the ‘irretrievable breakdown of the relationship’, which must be demonstrated by showing the parties have separated for 12 months prior to filing for the divorce application. This requirement is contained in Section 48 of the FLA.
In most cases, the irretrievable breakdown of a marriage is able to be proved by the parties having been separated for at least 12 months. The court may, however, require additional information or evidence in order to establish the marriage has broken down, depending on the parties’ individual circumstances. The court may also consider the couple to be separated even where only one party initiated or caused the separation.
The courts also recognise that parties may be separated while living under one roof. This is especially common where the parties share children and considerable financial assets. In these situations, the court will generally require corroborative evidence from third persons that the parties were living together while separated.
Where a marriage has lasted for less than two years, Australian family law restricts a couple from filing for a divorce until they have either:
The two-year timeframe is calculated from the date of the marriage to the date of applying to the court for a divorce, with 12 months separation still being a prerequisite for the application.
Once a divorce is granted, it takes a month for it to come into effect. In certain circumstances the period between the divorce being granted and the time it comes into effect can be reduced. Applying for divorce in the Federal Circuit Court
Orders about property settlement , spousal maintenance , children and child support are addressed quite separately to the ‘divorce’ itself. All of these types of orders can be obtained even if you have not yet been divorced. In fact, most of these types of orders can be sought before the the marriage has broken down.
Divorce remains relevant, however, in the context of these orders as once a divorce has been granted, there is a time limit of 12 months from the date of the divorce after which an application for orders for spousal maintenance or for property settlement cannot be made unless the court grants special leave.
Can I apply for a divorce?
What can I do if I can’t Attend the Hearing?
Yes, it is possible for you to apply for a divorce in Australia provided you or your spouse is an Australian citizen by birth, descent or by grant of Australian citizenship or if you regard Australia as your home and intend to live in Australia indefinitely or if you have been living in Australia for 12 months immediately before filing the divorce case. If you fulfil these mentioned criteria, then you are eligible to apply for divorce in the Family Law Court in Australia.
You will have to fill an application form for divorce and file it in the court along with the necessary application fee. You can prepare your own application or can get the help of a lawyer to file the application for you. It is always better to get advice and guidance from a qualified and experienced divorce lawyer while filing a divorce application in the court. You can either file a joint application with your spouse or you can make a sole application with your spouse as the respondent.
The court does not take into consideration the reason for ending the relationship. You will just have to prove in court that you and your spouse have been living separately or apart for at least 12 months and one day, and there is no possibility of resuming married life with the same person. If you have children below 18 years of age, then the court will consider giving divorce only if you are able to satisfy and clear the court about the arrangements you have made for the well- being of the children.
The fee to file an Application for Divorce in the Federal Circuit Court is $800. This fee is set by regulation and is generally only adjusted every two years. Some of you may be entitled to a reduced fee. In such cases, you can apply to pay the reduced amount by filing a reduction of payment divorce form. If you hold concession cards issued by the Australian Government or if you are experiencing financial hardship, you can apply for a reduced fee. In case of joint divorce application, both you and your spouse must qualify for the exemption or waiver. If only one spouse qualifies for the exemption or waiver, then the reduced fee is not applicable.
If the couples have been separated for more than 12 months, there are only a few opportunities to oppose the divorce application. You can only oppose the divorce if there has not been 12 months separation as referred in the application, or if the court does not have the jurisdiction. If you do not wish to divorce it is necessary for you to complete and file a Response to Divorce and appear in person in the court on the hearing date. You have to make it clear on which grounds are you seeking the dismissal of Divorce. You will have to attend the hearing in person once you file a response to divorce. If you fail to attend the hearing, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the permission of the Court to appear by telephone.
If you feel that the divorce application has some errors like incorrect date of birth, wrong details regarding the children etc, then you can file a response to divorce. In this you can specify about the information which are entered wrongly in the application. There is no need for you to attend the hearing.
If you are planning to file a Response to Divorce, you can do it at a family law registry. If you are residing in Australia you have to file the Response to divorce within 28 days of receiving the divorce application. If you are served with the application outside Australia you have to file the Response within 42 days of receiving the application.
If there is no child of the marriage aged less than 18 years, it is not necessary for you to attend the court hearing. This is applicable for both sole and joint divorce applications.
If you have made a joint divorce application and there is a child of the marriage aged less than 18 years, neither you nor your spouse are required to attend the court hearing. In the case of sole application, if there is a child of the marriage aged less than 18 years, you must attend the court hearing unless some serious situation prevents you from attending the hearing. If the respondent has filed a response to the divorce, the other party is not required to attend the hearing where as the respondent should attend the divorce hearing.
A child of the marriage includes any child of you and your spouse, including children born before the marriage or after separation or any child adopted by you and your spouse, or any child who was treated as a member of your family prior to your final separation; for example, a stepchild or foster child.
Sometimes it will be difficult for a person to attend the hearing of divorce case. In such cases you may request the permission of the court to appear by telephone by citing the reasons like distance to the court from your place or incapacity.
Granting of divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make future arrangements for children, property and maintenance, you will have to make an agreement with your spouse and file it in the court or you can seek orders from the court, if you and your spouse fail to reach an agreement on these issues. You will need to file a separate application within 12 months of the date of divorce if you are trying to get maintenance or want a division of property.
No. You cannot remarry until the divorce is finalized. You can plan your remarriage one month and one day after your divorce hearing. You will have to submit a copy of the divorce order to the marriage celebrant before your next wedding.
If you and your spouse is separated but continue to live in the same house for 12 months before applying for the divorce, it is considered as “separation under one roof”. If you are in this situation, at the time of filing the divorce, you need to prove to the Court that you were separated during this period of time. In joint application you and your spouse will have to provide separate affidavits. In solo application, apart from your affidavit, another affidavit from an independent person is necessary.
If you are married for less than two years, you will have to first attend a counseling with a family counselor or nominated counselor to discuss the odds of reconciliation with your spouse or you can seek the permission of the court to apply for divorce. At the time of applying for the divorce you should have completed two years from the date of your marriage. Moreover, you and your spouse must have been separated for at least 12 months before applying for a divorce.
Yes, it is possible for you to apply for a divorce in Australia if either you or your spouse regard Australia as your home and plan to live indefinitely in Australia. You can also apply for divorce if you are an Australian citizen or resident, or an Australian citizen by birth or descent or an Australian citizen by the grant of an Australia citizenship or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Apart from the above requirement, you will have to produce in court a copy of your marriage certificate in English language. If the certificate is not in English you will have to provide a translation of it with necessary proof for the qualifications of the translator.
If you have made a sole divorce application, you have to serve the divorce application on your spouse. If you were unable to serve the divorce application to your spouse even after making great efforts you can apply to the Court for a substituted service, or for dispensation of service.