Divorce is the official ending of a marriage. The only legal requirement for obtaining a divorce is the irretrievable breakdown of the marriage. This is proven by the parties to the marriage being separated for 12 months with no chance of reconciliation.
When you apply for a divorce, your spouse does not have to agree, nor does the law decide who is at “fault” for the marriage breakdown.
Getting a Divorce
Failing to obtain a divorce and therefore staying married may affect your rights and responsibilities when dealing with your financial matters (tax), wills and estates.
To apply for a divorce, you or your ex-spouse must:
- be an Australian citizen
- live in Australia and consider it your permanent home or
- normally live in Australia and have lived in Australia for at least 12 months before applying for a divorce and
- have been separated for 12 months.
If you were married overseas or do not know where your partner is, you can still apply for a divorce as long as you live in Australia.
Arrangements involving children
You must satisfy to the Court that proper arrangements have been made for children before allowing a divorce to become final.
The Court will want to know:
- where the children and with whom they will live
- how they will be financially supported
- about their health and education and
- how they will continue to maintain a relationship with both parents and other important people in their lives.
Getting back together for a short time
You may reconcile for up to 3 months without restarting the 12-month separation period.
Separation under the one roof
You are considered separated when you stop living together as a married couple.
After separating, one party may move out of the home, or you may be still living in the same house but have separate lives. This is “separation under one roof”.
When determining if you are separated under one roof, the absence of the following will be considered:
- Sleeping together.
- Having sex or sexual activity.
- Sharing meals and domestic duties (in a different way to when you were married)
- Sharing or continuing to share money and bank accounts.
- Your family and friends identifying you as a couple.
This list is not exhaustive, and no individual factor proves separation under one roof.
Divorce and short marriages
If you have been married for less than 2 years, you can divorce only if you and your spouse agree to counselling, or under special circumstances. If your partner refuses counselling, you can still get divorced.
Applying for a divorce
You can apply for a divorce either by a joint application (together) or on your own (sole application) through the Federal Circuit Court.
If making a sole application, you must “serve” the other person with the application. This is giving the other person the divorce application to notify them of the court proceedings. Certain forms must be completed to prove the other person has been “served”. You are not allowed to serve your former spouse personally but can do so by mail or a process server.
Timeframes
You should allow a few months from the time the divorce application is filed to the actual date of divorce.
Time Limits for completing a property settlement
While divorce will finalise your marriage, it will not finalise your matrimonial property interests if you have not already divided property. You must apply to the Court within one (1) year from the date your divorce order has taken effect. Otherwise, any court application requires the leave (permission) of the Court.
Legal advice
You may need to legal advice if you:
- Want a divorce and have been living separately for 12 months (either in separate houses or under one roof)
- Need help to make arrangements about children and property after separation
- Need to make or amend your Will or Enduring Power of Attorney following your Divorce.
At South Geldard Lawyers, our experienced Family Law team can provide advice on divorce, property settlements, parenting matters and your Will or Power of Attorney.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
