When a marriage has broken down, most people wish to obtain a divorce as a way of defining the conclusion of the marriage, and to enable them to remarry should they wish to do so.
In Australia, the Federal Circuit and Family Court of Australia (the Court) has the jurisdiction or power to deal with divorce under the Family Law Act 1975.
You can apply for a divorce in Australia if either you or your spouse:
- Regard Australia as your home and intend to live in Australia indefinitely; or
- Are an Australian citizen by birth, descent or by grant of Australian citizenship; or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated. This is known as being separated but living under one roof.
Same-sex married couples are treated the same as other married couples and can apply for divorce if the marriage is recognised in Australia and you meet the requirements for divorce under the Family Law Act 1975.
If you were married overseas and your foreign marriage is recognised in Australia (in accordance with Part VA of the Marriage Act 1961), you must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to upload an English translation of the marriage certificate, together with an affidavit translation of marriage certificate from a certified translator.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. You will be asked to provide information about any children of the marriage, or who were treated as members of the family in your application. Be sure to provide sufficient detail about the how the child/ren spend time and communicate with each parent, their education, health, and financial support.
To be eligible to apply for divorce, you must satisfy the following requirements:
- A marriage must have broken down irretrievably,
- Parties must be separated for a continuous period of 12 months prior to filing.
A divorce order won’t be made if the court is satisfied that that there is a reasonable likelihood of cohabitation being resumed.
Meaning of separation (including under one roof)
The parties to a marriage may be held to have separated notwithstanding that the cohabitation was ended by the action or conduct of one only of the parties and parties may be held to have separated and to have lived separately and apart.
Effect of resumption of cohabitation
Section 50 FLA – For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.
A period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.
Where marriage less than two years
Section 44 (1B) FLA – An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate: to the effect that counselling sought for the purposes of reconciliation and signed by counsellor.
S55A declaration – children
Court must be satisfied that if there are children – proper arrangements have been made for those children for their care, welfare and development or there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made. Court can adjourn divorce proceedings if in doubt that arrangements are proper so that a report can be prepared by a family consultant.
For more information on divorce and separation, please contact our experienced specialist family law team today on 1300 537 306