Jan 24

Divorce: Overview

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Divorce is the legal end of a marriage (dissolution of marriage). Australia has ‘no fault’ divorce. This means that when granting a divorce, the Court does not consider the reason/s the marriage ended. Neither spouse needs to prove that the other did (or did not) do something which caused the breakdown of the marriage. The only ground for divorce is that the marriage broke down and there is no reasonable chance that the parties will get back together.

The Federal Circuit and Family Court of Australia (the Court) has the jurisdiction or power to deal with divorce under Part VI  of the Family Law Act 1975.

The granting of a divorce does not determine issues of financial support, property division or arrangements for children. It is simply a formal recognition that the marriage has ended.

Can I apply for a divorce?

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.