How to get divorced in Australia? It's over for you and your spouse. You've tried to reconcile, but the marriage just doesn't work out anymore and you want a divorce. So, how to get divorced in Australia? This article answers this question.
Requirements to Get Divorced in Australia
If you and your spouse decide to separate, it's important to understand the divorce requirements for commencing the proceedings. A party can apply for a divorce application in a sole application or in a joint application. To apply for a divorce in Australia, you must meet the following requirements:
- you must be in a legal marriage,
- your marriage must have broken down irretrievably,
- you and your spouse must separate for at least 12 months,
- you or your spouse must be an Australian citizen or have been living in Australia for at least the last 12 months prior to filing, and
- you and your spouse must make appropriate arrangements for the care of any child of your relationship, if relevant.
In addition, if you married overseas, you can apply for a divorce in Australia as long as you meet the requirements above. However, there may be delays in the process, especially if one spouse lives overseas.
How to Get Divorced in Australia: Guide
The steps on how to get divorced in Australia generally include the following:
1. Preparing the necessary documents
Couples seeking a divorce should prepare a divorce application at the Federal Circuit and Family Court of Australia (FCFCOA). Couples also need to provide necessary documents or supporting documents such as the marriage certificate, tax returns, bank statements, counselling certificate, mortgage documents, family trusts, and retirement account statements. You can view a divorce checklist here.
2. Signing before a qualified witness
After drafting a divorce application, couples need to sign the application in front of a witness. Most divorcing couples sign their application before a Justice of Peace. Couples should also swear an oath or make an affirmation of truth. This certifies that everything in the divorce application is factual and credible.
3. Filing the divorce papers to the Court
Couples will then need to photocopy the divorce application along with any supporting documents. Essentially, divorcing couples will need to pay court filing fees when submitting these documents. You can find current 2023 filing fees here.
4. Attending the divorce hearing
After filing the divorce papers to Court, the Court will process these documents and set a court hearing date. The Court grants the divorce at the hearing, however, one must not assume that Courts will automatically grant the divorce. For instance, at the first court hearing, the Court may require you to provide more information.
5. Issuance of the Divorce Order
Finally, the Court issues a divorce order, which becomes official one month and one day after the court hearing date. For the Court to approve a divorce, it must be satisfied that:
- you have provided a valid marriage certificate,
- your marriage has irretrievably broken down,
- you have lived separately for 12 months and a day,
- any children of the marriage have been adequately provided for in terms of care and financial support,
- you are eligible to apply for divorce within Australian jurisdiction,
- you have communicated to the other party of the intention to divorce, and
- if the marriage has lasted for less than two years, you have participated in prescribed marriage counselling.
Can I Get a Quick Divorce?
No, divorcing couples can only file an application for divorce after a year of separation, i.e. after a separation period of 12 months. The 12-month period begins on the day one or both parties leave the marriage. You can get back together for up to three months without re-starting the 12-month separation period. However, the time you spend back together will not count as part of the separation period.
How to Get Divorced: Do I have to Provide Divorce Reasons?
No, Australia has a no-fault divorce system. This means that you do not need to provide divorce reasons or grounds for you to file for a divorce. When granting a divorce, the Court does not consider financial hardship or other reasons why the marriage ended.
The only ground for divorce in Australia is the irretrievable breakdown of marriage. This means that all that is needed is that the marriage broke down and there was no reasonable chance of getting back together. It does not matter who was at fault or if both or just one party wants a divorce.
What if My Marriage Was Short?
For short marriages, if you and the other party were in a marriage for less than two years you cannot apply for divorce unless you:
- provide a certificate from a counsellor, stating that you have both attended marriage counselling and considered getting back together; or
- ask the Court for permission for the hearing of your application to go ahead even though you have not attended marriage counselling and considered getting back together.
The Court only grants permission to proceed without a certificate if you can provide evidence (through an affidavit) that there are special reasons why you have not attended counselling. Special reasons include not knowing the whereabouts of the other party, the latter refusing to attend counselling, or it is not appropriate to do so due to family violence or family violence orders.
How to Get Divorced in Australia with Children Involved?
If there are children of the marriage, Section 55A of the Family Law Act 1975 provides that the Court must feel that proper arrangements ensure the "care, welfare and development of children" before granting a divorce.
Details such as where and whom the children will live with, how often they see or communicate with the other parent, and financial agreements for the children have to be provided for the Court to be satisfied that proper arrangements have indeed been made.
When Can I Remarry?
Section 59 of the Family Law Act 1975 states if a divorce order in relation to a marriage has taken effect, a party to the marriage may marry again. A divorce order takes effect one month and one day after the grant of divorce.
After such a period, it is safe for a person to remarry. Do not remarry during divorce proceedings or before your divorce becomes final. To do so constitutes bigamy and renders your second marriage void (not legal and binding).
Seeking Legal Advice From Expert Family Lawyers
This article provides general steps on how to get divorced in Australia, but there may be more things to do to ensure that your divorce application gets approved. Applying for a divorce under Australian law may involve various steps.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
