Divorce and Separation

Starting with Separation

There’s no need to officially register your separation. However, it is very important that you take note of the date. Under Australian Family Law married couples wishing to divorce must be separated for a period of no less than 12 months. It is at this point that you can lodge your divorce application and officially begin the process of ending your marriage.

Is it different for de facto couples?

Fairly recent changes to the Family Law Act mean de facto couples (including same sex de facto couples) enjoy the same end-of-relationship rights to child custody, property settlements and financial settlements. However, couples must meet a framework of criteria to establish that the relationship was in fact a de facto one. De facto couples also have only two years following separation to pursue legal proceedings surrounding property and financial settlements.

On what grounds can I file for divorce?

Marriages can simply fail. Because Australia’s divorce laws are no longer based on proving which party was at “fault”, couples wishing to legally separate will need to prove that:

  • you have been separated for no less than 12 months;
  • you have lived separately during this minimum 12 month period;
  • there is no reasonable likelihood of reconciliation;
  • you’ve been married for longer than 2 years or, if less than that, have attended Family Court appointed marriage counselling.

Is it possible to separate and remain under the same roof?

Financial circumstances often make it difficult for spouses to relocate at the point of separation. This is fine, and, as long as you’re able to meet the specified criteria and give evidence that you do so, you and your ex-spouse may remain within the same home. In order to meet this criteria you and your spouse must:

  • live in separate rooms;
  • cease all sexual activity;
  • have separate bank accounts;
  • not share meals or recreational activities;
  • present yourselves as separated to friends, relatives and neighbours.

What if I’ve been living overseas or was married overseas?

To apply for a divorce in either of these situations one or both parties will need to be either:

  • an Australian citizen;
  • a resident of Australia for over 12 months.

marriage certificates that are not in English will need to be officially translated and have associated documentation attached.

Remarrying after a divorce

It’s illegal to remarry until the finalisation of your divorce. This is officiated a month after your  divorce was granted.

The 8-step process to filing for your divorce

  1. Complete an Application for Divorce form – this kit can be accessed on the Family Law Courts government website. This can be completed by either yourself or your lawyer and documents can be submitted online.
  2. Swear or affirm – the signing of your document must be witnessed by either a lawyer, Justice of the Peace or other person authorised to witness affidavits.
  3. Make copies –  two photocopies must be made of the completed and signed application and all supporting documents.
  4. File – the documents must be filed by either hand or post to your nearest family law registry. It must include a copy of your marriage certificate, the original application for Divorce and both copies. There is a fee associated with this however some people may be eligible for a fee reduction.
  5. Your file number and hearing date – will be sent to you from the court along with your copy of the application.
  6. Serve papers – if you are applying for a divorce on your own you will need to serve your spouse their copy of the Application for Divorce:
    • At least 28 days before the hearing if your spouse is inside Australia;
    • At least 42 days before the hearing if your spouse is located overseas.
  7. The hearing - whether or not you need to attend the hearing is based upon your circumstances. You are not required if there are no dependant children or if there are dependant children but you have filed for a joint divorce. If you have applied for divorce on your own and there are dependant children your attendance will be necessary.
  8. The outcome – Successful divorce applicants will have their divorce finalised one month and one day after it has been granted by the court.

Want more advice or information about your divorce or separation?

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