Divorce in Australian Law8 December 2021 in Family and Divorce Law
A divorce is considered a legal termination of a marriage. Having a divorce in Australia is a legal process and there are several requirements which must be met before you can obtain a divorce.
Brander Smith McKnight’s Sydney family lawyers take pride in their expert knowledge regarding divorce. Our divorce lawyers have extensive experience and competence in areas of law associated with divorce which include, separation, parenting arrangements, child support, property and financial services.
Our Sydney family lawyers understand the gravity of a marriage ending and understand the importance of handling divorce matters with both sensitivity and understanding. Because of this understanding and sensitivity, our divorce lawyers are committed to helping you complete the process of divorce efficiently.
Brander Smith McKnight ensures you that divorce is a common process that couples go through every year, in 2019 alone, 49,116 divorces were granted across Australia (Australian Bureau of Statistics 27/11/2020).
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
Australia’s “No Fault” Divorce
In 1975 Australia introduced a new system of divorce, the “no fault” divorce system. This now means that a divorce can be obtained even if there is no evidence of some fault by a partner. In short, to get a divorce in Australia you do not need to prove that a partner has caused the breakdown of your marriage through some conduct like an affair, violence or drunkenness.
Under the “no fault” divorce system, a divorce simply requires that you show that your marriage has suffered an “irretrievable breakdown” and that there is no reasonable likelihood for reconciliation between you and your partner.
It is important to understand that in Australia, whilst there is no necessity to justify why your marriage has come to an end, the court will may take into account other aspects of your relationship when making orders that are associated with the end of a marriage. For example, if a court is considering the appropriate parenting arrangements for a child of a divorced couple they may consider the conduct of each parent in deciding how much time the child spends with each parent.
Can I apply for a divorce?
Applications for divorces in Australia can be applied for jointly with your former spouse or on your own (this is called a sole application). As such, divorce applications can be made by either you or your former spouse.
Applying for a divorce in Australia also requires applicants to meet a certain eligibility criteria. To be eligible for a divorce in
- Australia either you or your former spouse must:
- intend to live in Australia indefinitely and regard it as your home; or
- are a citizen of Australia by birth, descent or by grant of Australian citizenship; or
- ordinarily live in Australia and have done so for the 12 months immediately prior to filing for divorce.
Further to this eligibility criteria, to obtain a divorce, you must satisfy the Court that:
- both you and your former spouse have been living separately and apart from each other for a period of at least 12 months; and
- that there is no prospect or reasonable likelihood of reconciliation between you and your former partner.
When considering these criteria, it is important to know that it is in fact possible to be considered separated from your former spouse even if your still live under the same roof.
You can also still apply for a divorce where you and your former partner have experienced a short period of reconciliation. To apply for a divorce in these circumstances you must:
- Prove that the reconciliation period was not longer than three months; and
- Prove that the period of separation prior to and after the short reconciliation add up to at least 12 months.
- For example, if you and your former partner had separated for 6 months and then spent a week together, and then spent another
- 6 months separated, you would not be prevented from applying for a divorce.
It is important to understand that obtaining a divorce is only one issue amongst many in a legal separation. Following your divorce, there will be issues of property distribution, parenting arrangements and financial support that will be necessary to deal with. In short, a divorce order acts as a legal confirmation that your marriage has come to an end.
Brander Smith McKnight’s Sydney separation lawyers are a team comprised of divorce experts who have extensive experience with applications for divorce. Our divorce lawyers are well equipped to guide you through each step of the divorce process with compassion and efficiency. Our team of family lawyers are also here to help you with the numerous other issues which arise following separation.
Same-sex divorces in Australia
Same sex marriages are recognised in Australian law and these marriages are subject to the same divorce processes as heterosexual marriages. Same-sex marriages became legally recognised in Australia on the 7th of December 2017.
As of the 7th of December 2017 same-sex marriages have been recognised retrospectively. As such, same-sex marriages which broke down prior to this date still need to be separated for a period of 12 months before they can apply for a divorce.
Brander Smith McKnight’s Sydney divorce lawyers have experience with same-sex couples and are committed to treating same-sex couples respectfully and equally.
How to apply for a divorce in Australia
The following is a general overview of the process associated with obtaining a divorce:
Step 1: Parties have been separated for a minimum of 12 months.
Step 2: An application for divorce is filed solely or jointly.
Step 3: If an application for divorce is filed jointly, the application must be served to your spouse (this is not necessary if you have applied for your divorce jointly).
Step 4: There is a court hearing regarding the divorce, attendance of the parties is necessary if there is any children under the age of 18 to the marriage and the application is a sole application. Attendance at the court hearing is not necessary where there is a joint application.
Step 5: Divorce orders are granted and become final one month and one day from the date the court grants the divorce.
Getting a Divorce in Australia
The following is a more detailed description of each stage of the divorce process and is intended to give you a better understanding of that process.
Step 1: The Date of Final Separation
Australian law provides for only one ground for divorce – the irretrievable breakdown of a marriage.
For your marriage to be considered to have suffered an irretrievable breakdown, you and your former spouse need to have been living separately and apart from each other for a period of at least 12 months. At least one party to your marriage must have intended the marriage to be over at the date of separation.
If you and your partner have been married for less than two years, before you are able to make a divorce application you will be required to participate in counselling to determine whether there is any possibility of reconciliation. In this case, you will need to file both your application for divorce and a Counselling Certificate with the Court.
Step 2: Filling the Divorce Application
Divorce applications are dealt with by both the Federal Circuit Court and the Family Court of Australia.
Following the required 12 month period of separation, there are a number of documents that you will need to file in the Federal
- Circuit Court and the Family Court of Australia, these are:
- A Divorce Application Form;
- Marriage Certificate (if the certificate is not in English, you must provide a translation made by a certified translator);
- Proof of jurisdiction (this could include such documents as an Australian passport, Australian Visa or Australian citizenship certificate);
- A counselling certificate if a marriage has lasted less than 2 years; and
- An Affidavit providing evidence that you have been separated under one roof.
Applications for a divorce must be filed and sealed orders obtained via the Commonwealth Court’s Portal. If you are filing a divorce application independently, you will need to register for the Commonwealth Courts Portal.
There is a fee incurred when filing a Divorce Application, a concession card may reduce the size of this fee.
You will receive a date for the hearing of your application after you have filed your application. Your attendance at this hearing will depend on whether there are children in your relationship and whether the application was filed jointly or solely.
Step 3: Service
Where an Application for Divorce is made by you, then service is required on your former partner. You do not have to complete a service if you have made a joint application for divorce.
Service refers to the delivering of Court documents to another person to comply with the Court’s process and make sure that the person being served has received the documents. There are a number of requirements associated with the serving of documents relating to an Application for Divorce. You are required to provide your spouse with:
- The Application for Divorce
- A Marriage, Families and Separation brochure
- The Affidavit for filing Signed by your spouse, and
- All other documents that you have filed at the time of the application for divorce, this includes the Marriage Certificate and any affidavits.
If you apply for a divorce it is important that you understand that you cannot serve the respondent (your former spouse) to your application personally. If you are not legally represented and are applying for a divorce, you will require someone to attend to service for you. This can be done through the arrangement of process server or an adult over the age of 18 who may carry out the service.
To prove service, you must complete and file the following forms:
- An Acknowledgement of Service form. This must be provided to and signed by the respondent.
- An Affidavit of Service which is signed by the person who served the documents.
- An Affidavit Proving Signature which must be completed and filed where a divorce application is served by hand.
- It must be noted that these documents must be filed with the Court via the Commonwealth Courts Portal.
When serving documents in relation to a Divorce Application, documents may be served by:
- Hand: this form of service occurs where you have documents hand delivered on your behalf via either a process server or any person over the age of 18.
- Post or other forms of electronic communication (such as via an email): this form of service is appropriate if you are certain your former partner will sign the documents and return the document to you for filing.
- Service on a lawyer: where your former spouse has legal representation that has agreed in writing to accept service, then documents can also be served to that lawyer’s office.
If your former spouse lives in Australia, then service must be completed with 28 days before your Divorce Application’s hearing date. Alternatively, if your spouse is outside of Australia then the relevant documents must be served on them within 42 days prior to date of your Divorce Application hearing.
The person served will not be required to attend the Divorce hearing for orders made where the Court is satisfied that the service has been completed.
Your former spouse may file a Response to Divorce if they consider the divorce application to be factually inaccurate or if they disagree with the Divorce Application or a Divorce Order which is granted. Your former spouse must appear at the hearing of your Divorce Application if they wish to file a Response to Divorce.
There are only two instances in which a divorce application can be opposed by a former partner. These are either where:
- There has not in fact been a period of 12 months of separation between a married couple; or
- If it is alleged by the respondent that the Court lacks the jurisdiction to grant the divorce.
- A Response to Divorce is subject to certain time limits in order to be valid. First, the response must be filed within 28 days of service if the respondent is in Australia. If the respondent lives overseas, then they will need to file the response within 42 days of service. Second, the Respondent will also need to serve the Response to Divorce on the original divorce Applicant.
Step 4: Court Hearing
Following the filing of an Application for Divorce, you will receive a date for a hearing. A hearing can fall anywhere between 6 to 8 weeks following the date of filing. Parties to the hearing will be provided with further details about the hearing closer to the hearing date.
Attendance at a hearing may or may not be required depending on the circumstances of your divorce application.
You will need to attend your hearing if you have submitted a Sole Application and:
- You have children under the age of 18;
- You file an application for substituted services or dispensation of service;
- A Response to Divorce has been filed.
- You will not need to attend your hearing if your Application for Divorce was filed jointly.
- A lawyer may be permitted to attend the hearing on your behalf if you are unable to attend.
Step 5: Divorce Order
A divorce order will be granted where the Registrar is satisfied that all the legal requirements of divorce have been met. The divorce order will legally terminate your marriage.
Divorce orders are completely finalised one month and one day after the order is made.
Courts no longer issue hard copies of divorce orders, however a copy of your divorce order will become available via the Court’s portal. This can be accessed by either you or your lawyer.
Time Limits for Divorce
The following are important time limits to keep in mind when seeking a divorce.
- Applications for Divorce – Applications can only be made by married couples who have been separated for a period of at least 12 months.
- Service of Application for Divorce – Service must occur within 28 days prior to the hearing if the respondent is in Australia. Alternatively, if the Respondent is outside of Australia, service must occur within at least 42 days prior to the hearing.
- Divorce Orders – divorce orders are officially finalised and take full legal effect one month and one day following a Court’s granting of a divorce order.
- Response to Divorce – if you wish to file a response to divorce within Australia, the response must be filed within 28 days after you have been served the relevant documents by the divorce applicant. If you are overseas, you must file your response to divorce within 42 days of service of the divorce documents.
- Special Service – This must be done as soon as practicable and no longer than 12 months from the date of filing.
Application for Property Settlement – These applications must be made within 12 months after your divorce is finalised.
Application for Spousal Maintenance – these applications must be made within 12 months after your divorce is finalised.
- Parenting Matters – These proceedings are not subject to a time limit. Where final order have been made in relation to a parenting matters any further proceedings require evidence of a significant change in circumstance.
- Application for Leave – where you fail to commence proceedings within the applicable time limits then you must make an application to the Court seeking permission to commence proceedings. This process requires that you explain to the Court why you did not comply with the appropriate time limits. In addition to this, you must demonstrate to the court that a failure to make an Order would result in hardship.
Divorce applications for couples married overseas
If you and your former partner were married overseas, you are subject to the same Divorce Application process discussed above if you or your former spouse:
- Regard Australia as your home and intend to live indefinitely in Australia, or
- Are an Australian citizen by means of birth, descent or by grant of Australian citizenship, or
- Ordinarily live in Australia and have been living in Australia for the 12 month period immediately prior to the filing of your divorce.
Please note that even when a couple is married overseas, they are still required to provide a copy of their marriage certificate to the court when seeking an Application for Divorce. If a marriage certificate is not in English, you will need to file a translation of the certificate. In addition, you will also need to file an affidavit of the translator which should be annexed to the translation.
If I get a divorce in another country will it be recognised in Australia?
Australia legally recognises divorce orders that have been obtained overseas, so long as they comply with the laws of the county where the divorce order was granted. Further, it is not necessary that you register your divorce in Australia if you obtain a divorce overseas.
An annulment, otherwise known as a declaration of nullity, is a legal finding that no marriage has existed between two parties regardless of whether a marriage or marriage ceremony has occurred. Seeking an annulment is an alternative to divorce and may be sought where:
- You married someone because you were tricked or forced to
- You or your partner were already married prior to the wedding
- A party to the marriage was under the age of 18 at the time of the marriage
- You could not understand the marriage ceremony
- The parties’ marriage was inconsistent with relevant laws
- The person was married to a close relative
Consent to the marriage was obtained by:
- Mistaken identity (regarding the ceremony or the person they were marrying); or
- Exploitation of a party’s mental disabilities.
An annulment cannot be sought in circumstances of domestic violence, non-consummation or where a party has changed their mind about the marriage.
It is important to also distinguish an annulment from a divorce in that if an annulment is granted it will take full legal effect immediately.
Applying for a marriage annulment
To obtain an annulment, you must make an application for a decree of nullity. To make this application you must file specific documents with both the Federal Circuit Court and Family Court of Australia. These documents are:
- An Initiating Application (Family Law) form
- An Affidavit which outlines the facts upon which you are relying on to have your marriage annulled (this may include details of the marriage ceremony or descriptions of any duress that influenced the marriage)
- A copy of the marriage certificate
Filing these documents will incur a fee which may be minimised if you hold a Concession Card.
Please note that seeking an application for a Decree of Nullity does not require the parties to the marriage to have been separated for period of 12 months.
What the Service requirements for an Application for a Decree of Nullity?
Applying for an annulment is like applying for a divorce in that you must serve the other party to the annulment. When making an application, the applicant (the person making the application) must provide the Respondent and all relevant parties with:
- A copy of the filed Application for a Decree of Nullity;
- Any filed Affidavit that is in support of the Application for a Decree of Nullity;
- An acknowledgement of Service Form; and
- the Marriage, Families and Separation Brochure.
You must file an Acknowledgement of Service which must be accompanied by an Affidavit of Service from the person who served the documents to prove that the service requirements have been complied with. You can file these documents via the Court portal.
What happens after an Application for a Decree of Nullity is filed and served?
A Response to Initiating Application can be filed by the Respondent if:
- they are opposing or consenting to any of the orders sought in the Initiating application; or
- they are seeking other orders in accordance with the Family Law Rules (pt 2.4).
A Respondent who files a Response to an Initiating Application must also file an Affidavit in support of the Application. Both the Response and Affidavit must be filed and served within 28 days of service of the initiating application.
A submitting notice should be filed where the respondent to the initiating application does not wish to contest the orders sought within the application and will submit to the Court’s orders in relation to the application.
Attendance requirements at the Hearing of a Decree of Nullity
It is compulsory for both the Applicant and the Respondent to attend Court for the first event in relation to the hearing of their application for a Decree of Nullity.
Frequently Asked Questions
When can I apply for a divorce?
To make an Application for Divorce you first need to show that you and your former partner have been separated for a period of at least 12 months. Please note that if you reconcile with your former partner during your separation it may have an impact on the time at which you can apply for a divorce.
Can I still apply for a divorce if I still live in the same house as my partner?
You can still obtain a divorce if you are living under the same roof as the partner you have separated from. You will need to still provide proof of your separation, for example, you will need to provide the court with evidence that you sleep separately.
Can I oppose a divorce application?
If you wish to oppose a divorce application, you should be advised that you may do so in certain circumstances. These circumstances are if you have in fact not been separated from your spouse for more than 12 months, if you argue that that the Court has no authority to order the divorce or if you argue that there was never a valid marriage in the first place.
You may also wish to disagree with the facts alleged by your former spouse in their divorce application even if you still want to get a divorce. This can be done through the filing of a “response” which can outline your points of disagreement with a divorce application’s statement of facts.
Are children and property issues dealt with at the same time as my divorce?
A divorce application is separate to any applications for parenting or property orders. As such, any orders or matters relating to property or parenting can be pursued following separation.
How does getting a divorce effect my will?
Following a divorce, aspects of your will may become void. In particular any rights or gifts you may have bestowed upon your former spouse will become invalid.
How long is the divorce process?
Will I have to pay my former spouse maintenance?
Following your divorce, you may need to pay you former spouse spousal maintenance. This is because Australian family law has imposed a duty on the Courts to ensure that following a couple’s separation a non-working or part-time working spouse is not suddenly unable to access essential goods and services. As such, the court may make an order for one spouse to pay a regular sum of money to their former spouse to financially support them following separation.
Where can I get a Divorce Application form?
You can visit the Commonwealth Courts Portal to complete a Divorce Application.