What is a Divorce?
While the term is often used loosely to describe the end of a relationship, the splitting of assets, or the making of child custody arrangements, the process of divorce is the formal dissolution of a marriage by way of a court order. In addition to getting a divorce, the parties may (but don’t necessarily have to) arrange a property settlement to divide their assets, or seek parenting orders to determine child custody arrangements.
This guide is intended to provide a general overview of the divorce process in Australia, however feel free to also see our articles on parenting orders and family law property settlements.
What’s the Process for Getting a Divorce?
Divorce in Australia is a “no fault” jurisdiction. The grounds for a divorce is simply the “irretrievable breakdown of marriage, established by evidence of the parties having lived separately and apart for a continuous period of 12 months immediately before the filing of a divorce application”.
This means that the Court does not look at the behaviour of a party when considering whether to grant a divorce. Rather, the Court’s criteria for granting a divorce are as follows:
1. Jurisdiction
An application for divorce can be heard by the Family Court of Australia if one of the parties is an Australian citizen or has been ordinarily resident in Australia for the past year.
The Family Court can decline to hear a divorce application if there are divorce proceedings already on foot in another country.
2. Validity of Marriage
When filing a divorce application, you will need to file a copy of your marriage certificate to prove there was a legal marriage in the first place. If you got married overseas and your marriage certificate is in a language other than English, you will need to provide a translated copy.
3. Separation
In order to apply for a divorce you must have been separated from your spouse for at least twelve (12) months.
Separation does not just mean a physical separation (i.e. moving out of the house). Rather, it involves “the breakdown of the marital relationship”.
Separation occurs when at least one of the parties to the marriage has formed the view that the marriage is over and has communicated that to the other spouse. Further, that there is action or conduct which confirms that there has been a severing of the marital relationship (i.e. moving out of the home, no longer attending at social events together).
4. Marriages of Less Than Two Years
Parties who have been married for less than two (2) years, before filing a divorce application must attend on an approved family counsellor and be provided with a signed certificate from that counsellor that they have considered a reconciliation and still wish to proceed with the divorce.
When is a Divorce Official?
A divorce order takes effect one month after it is made (s48(2) of the Family Law Act 1975) or after a Section 55A declaration is made. A Certificate of Divorce issues at that time, whereupon the parties are then free to remarry.
A divorce order does not take effect until the Court makes a section 55A declaration that it is satisfied that there are no children of the marriage under the age of 18 years or where there are children under 18 years of age, that proper arrangements have been made for their care, welfare and development.
We Can Help
At Thornton + King, our expert family lawyers have decades of experience dealing with divorce matters. If you’d like assistance with getting a divorce, or would like to have a confidential discussion about your rights and obligations, give us a call or submit an enquiry now.
