Applying for Divorce in Australia
In Australia, a ‘no-fault’ system is adopted for divorce cases. The single justification for divorce is the ‘irretrievable breakdown’ of a marriage, indicative of no real possibility of reconciliation. Jurisdiction to order the dissolution of marriage is held by the Federal Circuit and Family Court of Australia (FCFCOA) under the Family Law Act 1975 (Cth).
An individual may choose to apply for a divorce independently or request a divorce lawyer’s assistance to ensure accuracy and completion of the application. However, it should be clarified that an application for divorce doesn’t deal with child custody or distribution of marital assets and spousal maintenance. These matters are addressed separately, and obtaining legal advice is recommended.
Legal Requirements for Divorce
Eligibility for divorce is contingent on meeting three requirements: legal marriage, connection to Australia, and separation. Firstly, the marriage has to be legally acknowledged in Australia, as the court cannot dissolve a marriage it doesn’t recognise. For example, a marriage involving a child as one of the parties is not acknowledged in Australia, irrespective of its legality in the country of occurrence.
The second requirement is the establishment of a connection to Australia by either of the spouses. This connection is typically substantiated through citizenship, whether one of the parties was born in Australia or is a citizen by descent or grant. Alternatively, a party living in Australia for the preceding year with intentions to stay meets this requirement.
Lastly, the couple must have been living apart for a minimum of 12 months. The date of separation is generally the day when the couple stops living together. Yet, it is possible for a couple to be separated and still share a roof, mainly due to convenience, financial constraints, or uninterrupted childcare.
Divorce Application In Australia
Once the mandatory separation period is over, an application for divorce can be filed by either or both spouses. Divorce applications are submitted online through the Commonwealth Courts Portal. Individuals can apply for a divorce singly (a sole application) or along with their spouse (a joint application). Both application types utilise the same online form, but the correct section of the form must be chosen, and specific process obligations completed.
In a joint application, one of the applicants completes the application, provides the other applicant a copy for review and signature, and then submits it online. In contrast, in a sole application, one party (the ‘applicant’) applies and is required to serve the divorce papers on the other party (the ‘respondent’) within stipulated timeframes before the hearing date.
The respondent, if opposing the divorce, can file and serve a Response to Divorce and attend the divorce hearing. Opposition to the application can be on the grounds of the couple not being separated for 12 months or the court lacking jurisdiction to grant the divorce.
Navigating a divorce can be complex and emotionally draining, thus understanding the requirements and steps involved is essential. If eligibility for filing a divorce or assistance in completing a divorce application is a concern, seeking legal advice is recommended. It should be noted that the court cannot provide legal advice as it must remain unbiased in all proceedings.
If you require legal advice or representation in any legal matter, please contact our office on 1300 111 835 or by email The Family Lawyer.
