Divorce is the legal end of a marriage.
Australia has a ‘no fault’ divorce system which means that when granting a divorce, the Court does not consider the reason the marriage ended. There is no need to provide any reasons for divorce other than that the relationship has broken down irretrievably and there is no reasonable chance that the parties will reconcile. Provided you have been separated for more than 12 months the Court takes this as evidence of that.
The Court also recognises that in some circumstances, even though you are technically separated, you and your ex-partner may still live under the same roof, for example, for financial reasons or because of the children. In such cases, you can still obtain a divorce as long as you provide the relevant details in your application.
Applying for a divorce
An application for divorce is made online through the Federal Circuit and Family Court of Australia using the Commonwealth Courts Portal. You can apply if either you or your spouse regard Australia as your home and intend to live in Australia indefinitely, are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce. The same rules apply to same-sex couples. .
You will need your marriage certificate, identification, and proof of citizenship (if you were not born in Australia).
If you were married overseas and your marriage is recognised in Australia, you can seek a divorce through the Australian Courts. You must provide a copy of your marriage certificate. If your marriage certificate is not in English, you need to upload an English translation of it, together with an affidavit from a certified translator.
What about the children?
The Court needs to be satisfied that any children are being taken care of before a divorce will be granted but will not expect that you have a formal agreement in place regarding parenting arrangements. In your application, you will need to provide information about any children of the marriage (or children who were treated as members of the family).
What about property?
A divorce is a separate matter from the division of your property. You and your ex-partner may be able to reach an agreement about dividing your assets without having to go to Court.
You should speak to a family lawyer about how to finalise any agreement reached so you understand your rights and the agreement is correctly documented and legally binding. Keep in mind, however, that if you cannot reach an agreement about the division of your property, a formal application for property orders must be lodged within 12 months of your divorce.
How long does it take to finalise a divorce?
When you lodge your application the Court will advise you of the hearing date, which is usually within 2-3 months. Generally, the hearing will not take long, and you may not need to attend Court. If the order is granted, the divorce becomes final in one month and one day from the date of the hearing.
Getting help with your divorce application
Applying for a divorce need not be complicated but sometimes there are obstacles to overcome, for example, obtaining the right documentation, having papers translated, or serving documents on your ex-partner. Alternatively, you may just need some practical assistance with the paperwork.