Divorce is the legal term used to describe the formal dissolution of a marriage. A divorce may be granted by either the Family Court of Australia or the Federal Circuit’s Court. Generally, these courts will have jurisdiction over a divorce provided both parties are resident in Australia or have lived as husband and wife in Australia.
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 the principle of ‘no-fault divorce,' which broadly means that the 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 a divorce application. This requirement is contained in Section 48 of the FLA.
SEPARATION UNDER THE ONE ROOF
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.
MARRIED LESS THAN TWO YEARS.
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.
MARRIED OVERSEAS - CAN I GET A DIVORCE IN AUSTRALIA?
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.
CHILDREN OR PROPERTY MATTERS
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.