Divorce

Australia has ‘no fault’ divorce system. 

There is no need to prove this means that the only ground for divorce is that there is no reasonable chance that the parties will get back together as there has been an irretrievable breakdown of the marriage.

To be eligible for a divorce, you meet these criteria:

Legal requirements

1. If married overseas, your marriage needs to be recognised in Australia.

Jurisdictional requirements

1. You are an Australian citizen; or
2. You have lived in Australia for 12 months prior to filing a divorce application; or
3. You intend to live in Australia for an indefinite period and regard Australia as your home.

Separation requirements

1. You must have been separated from and living separately to your spouse for a minimum of 12 months and 1 day.
2. If you have been married to your spouse for less than 2 years, you are required to attending marriage counselling unless you have leave from the Court to not attend counselling.

If you opt for a sole divorce application, you cannot serve the application on your spouse yourself, you will likely need to apply for either substituted service or dispensation of service.  Our divorce lawyers can explain the substituted service or dispensation of service should you require further information on either of these processes.

It is very common during this current housing crisis that separation has occurred but you and your former spouse are still residing under the one roof.  However, you will need to provide further documentation and evidence such as an Affidavit to establish that not only has separation occurred but also that you and your former spouse have advised family and friends, that you have ceased sharing a life as a couple such as socialising at events and that you no longer maintain any form of an intimate, domestic, or joint life.

Further, if there are any children to the marriage, the Court must ensure that the welfare of any children involved must be taken into consideration for the divorce to be granted. This involves deciding for housing, education, contact, health, and financial support. Once the Court is satisfied that these arrangements have been made, a Decree Nisi of the marriage is issued.

Please note that a divorce does not mean that your parenting arrangements have been finalised by the Court or that your property settlement will be finalised by the Court. Following separation, couples have the option to either file an application with the Court or come to an agreement regarding property and parenting matters, either before or after obtaining a divorce. This allows couples to resolve all financial and parenting matters at a time that suits them best. However, it is crucial to bear in mind that there is a time limit once a Divorce Order is granted. If you intend to file for property settlement and/or spouse maintenance, it must be done within one year of the Divorce Order becoming final. If the application for property settlement and/or spouse maintenance is not filed within the one-year period, then it cannot be done without the permission of the Court or the agreement of both parties.

The divorce becomes final, or absolute, one month and one day after the Decree Nisi is granted. It is important to remember that getting remarried is not allowed until the divorce decree has become absolute.

We can help you obtain a divorce in Australia. Please do not hesitate to ask us for more information.

Get in touch with Wickham Lawyers today!