PROCEDURE FOR DIVORCE
You can only apply for divorce in Australia after you have been separated for a period of at least twelve months. If you apply for a divorce you will need to show that:
you were married
you have been separated for at least 12 months and 1 day
your marriage has broken down and there is no reasonable likelihood that you will get back together
you or your husband or wife are Australian residents or citizens or regard Australia as your permanent home
If you apply for divorce on your own, you are referred to as the applicant. If you apply for a divorce together with your husband or wife, it is known as a joint application.
GROUNDS FOR DIVORCE
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that the Court does not consider why the marriage ended. The only grounds for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for a period of twelve months in order to satisfy the court that the marriage has broken down irretrievably.
However, if you have lived together as husband and wife for 1 period of up to 3 months after separating then you can use the periods of separation before and after living together again as husband and wife to calculate the required 12 months separation for divorce.
If there are children aged under 18, the Court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
MARRIAGES UNDER 2 YEARS
If you have been married for less than 2 years the Family Law Act requires you to show that you have considered reconciliation.
When you file your divorce application you must include a special certificate signed by an approved mediation or counselling agency, showing that you have attended counselling or mediation at that agency. This certificate is called the 'Counselling certificate for applicants married less than 2 years'. Your nearest Registry can print you a copy of the form or you can obtain it from the Court website.
If there are special circumstances that make mediation impossible or inappropriate, tell court staff.
IS ATTENDANCE NECESSARY
If you do not have children, you do not need to attend the hearing.
If there are children you have children under 18 and are applying on your own, you must attend the Court. However, if you have children under 18 and you make a joint application, you do not have to attend the Court.
If you have children under the age of 18 years and are applying on your own, you must come to the Court for your hearing at the time and date entered on your application form. You do not have to attend the hearing if:
- you are making a joint application together with your spouse; and
- you have requested in the application that the application be heard in your absence. However, in special circumstances the Court may still require you to attend the application may be adjourned to enable your attendance.
IF SPOUSE NOT TRACEABLE
If you do not know the whereabouts of your spouse, you can apply to the Court for the divorce to go ahead. However, you must show the Court that you have tried to contact your spouse.
IF YOU PLAN TO REMARRY
You should not assume that the divorce will be granted at the first hearing. For example, you may be told by the Court at the hearing that you will need to provide more information.
You cannot remarry until your divorce becomes final. It is unwise to make arrangements to remarry until the Court has fixed the date on which the divorce is to become final.
At 1 July 2002, the application fee for a divorce application is $273. If you cannot afford the fee, you can apply for an exemption or fee waiver. Talk to registry staff about this.
IF MARRIED OVERSEAS
You can apply to the Federal Magistrates Court for divorce if you were married overseas but you or your former partner
- are Australian citizens or residents, or
regard Australia as your permanent home.
You will need a copy of your marriage certificate. If your marriage certificate is not in English, you will need:
- an English translation of the marriage certificate, and
- an affidavit from the translator which:
- states his or her qualifications to translate
- attaches a copy of the marriage certificate
- attaches the translations
- states that the translation is an accurate translation of the marriage certificate
- states that the attached copy of a marriage certificate is a true copy of the marriage certificate translated.
for the affidavit the Court has a precedent form
available that you may wish to use.
CAN THE DIVORCE APPLICATION BE OPPOSED?
If you have been separated for more than 12 months, there are few opportunities to oppose an application for divorce. However, if you choose to oppose a divorce application, you complete and file the following forms with the Court:
- Response to Divorce application or
- If you object to jurisdiction, Response to jurisdiction (divorce).