Divorce in Australia
Divorce is the legal process to officially end a marriage. Australia has a national family law system so the rules and processes for divorce are the same in every state and territory. The Federal Circuit and Family Court of Australia is the only court that can grant a divorce in this country. This page outlines the process of divorce in Australia.
It is important to note that getting a divorce does not finalise arrangements regarding the care of children or division of property and that separate proceedings are necessary to formalise those arrangements.
In Australia, the divorce system is ‘no-fault’. This means that the court will not determine who is to blame for the failure of the marriage. The only legal basis for getting a divorce in Australia is the ‘irretrievable breakdown’ of the marriage. This breakdown is proven by the couple being separated for at least 12 months.
An application for divorce can only be made after a year of separation. This is considered long enough to prove that the couple is unlikely to get back together. Separation usually means that the couple lives in different homes, but it is possible to be ‘separated under one roof’.
Couples who have been married for less than two years are legally required to seek counselling before they apply for a divorce. However, this requirement can be waived in some circumstances, such as in situations involving domestic violence.
An Application for Divorce is made online via the Commonwealth Courts Portal. If both spouses agree to apply for a divorce, they can file a ‘joint application’ and share the cost of the application. If one spouse does not cooperate in the divorce application, they cannot stop the applicant from filing for divorce or the Court granting the divorce. However, the person seeking the divorce will need to file a ‘sole application’ for divorce, pay the application fee themselves, and serve the other spouse with the divorce papers.
When someone lodges a ‘sole’ application for divorce, they must notify the other spouse about the divorce and give them certain papers before the divorce hearing. The need for this is obvious because otherwise, someone could be granted a divorce, and their spouse might never find out.
The delivery of divorce papers is called ‘service’. Divorce papers can be served by post or delivered in person, but the person applying for divorce cannot serve them on their spouse personally. Divorce papers must be served at least 28 days before the hearing (if the respondent lives in Australia) or 42 days (if they live overseas).
Divorce hearings are held in the Federal Circuit and Family Court of Australia. This Court has locations around the country. The divorcing couple does not actually need to attend court (unless it is a sole application involving a child under the age of 18).
A registrar (rather than a judge) will usually be the one to review the application and decide whether or not to grant the divorce at the end of the hearing. The divorce will be granted as long as the applicant is eligible to apply for divorce in Australia and the procedural requirements for divorce have been met.
If a marriage takes place outside Australia, but the marriage is recognised in Australia, then the marriage can be dissolved by the Federal Circuit and Family Court of Australia.
If the original marriage certificate is not in English, the applicant for divorce needs to upload an English translation of the marriage certificate, together with an affidavit translation of marriage certificate from a certified translator.
Annulment of marriage
An annulment is an alternative to a divorce. Annulments are rare in Australia because they are quite difficult to obtain.
A successful application for an annulment will result in a ‘decree of nullity’. This means that a court has found that no legal marriage took place between the parties (even if a marriage ceremony took place). It is a finding that the marriage was void.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.