You can apply for a divorce in Australia if either you or your spouse:
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.
The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
You must pay a fee when you file for divorce. Application for Divorce in the Federal Circuit Court is $845 (excluding legal fees). This fee is set by regulation and is generally only adjusted every two years.
The fee does not apply in some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship. To be eligible for a fee exemption or waiver for a joint 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 full fee applies.
If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:
If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out the grounds on which you seek the dismissal in the Response to Divorce.
If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.
If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce. You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You should attend the divorce hearing.
If you want to file a Response to Divorce, you need to file it at a family law registry:
If there is no child of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.
If you have made a joint application and there is a child of the marriage aged under 18 years, neither you nor your spouse are required to attend the court hearing.
If you have made a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from attending.
If a respondent has completed and filed a Response to Divorce, he or she should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in you absence.
If a respondent has, in a Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.
If it is difficult for you to attend in person, you may ask the Court to appear by telephone. You must request in writing a hearing by telephone if you are unable to attend because of reasons such as distance from the Court or incapacity.
A child of the marriage includes:
It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time.
If you have been married less than two years and want to apply for a divorce, you must either:
The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file: