Divorce - what does it mean?
On this page:
What is divorce?
Divorce is the official ending of marriage. When the divorce is made final you can marry again.
The only requirement for a divorce is the 'irretrievable breakdown' of the marriage. This is proved by the husband and wife having been separated for 12 months with no likelihood of reconciliation (getting back together). The court does not look at whose fault it was that the marriage broke down.
A divorce does not sort out issues relating to children or property. These arrangements must be made separately. But in your divorce application you must show the court that proper arrangements for the care and welfare of your children have been made, or it may refuse the divorce. The court will want to know about financial support and the other arrangements for the children.
A Family Relationship Centre, Legal Aid Queensland or other family dispute resolution service may be able to help both partners reach agreement on all of these issues. You can also be referred to other services that can help your relationship with your ex-partner (including help with reconciliation of the relationship).
When can I apply for a divorce?
You can apply anytime after there has been 'irretrievable breakdown', that is once you have been separated for 12 months.
Also, you or your ex-partner must:
- be an Australian citizen, or
- live in Australia and regard Australia as your permanent home, or
- normally live in Australia and have lived in Australia for at least 12 months before applying
- have been separated for 12 months.
What if we got back together for a short time?
You can get back together for up to three months without re-starting the 12 month separation period. So if you are separated for four months, are back together for almost three months, then separate again for eight months, this will be considered a total of 12 months' separation. But, if you were back together for four months, then only the last eight months would count as separation.
Can we live separately 'under the one roof'?
Yes. You may be able to get a divorce if you and your spouse lived in the same house after separation but lead separate lives. The court will look at whether:
- you sleep together
- you have sexual relations
- you share meals and domestic duties (in a different way to when you were married)
- you share money and bank accounts
- your friends and family are aware that you are separated.
If any of these applies to you, and you want a divorce, get legal advice.
Do I have to get a divorce?
No. But, you cannot remarry unless you get a divorce. Staying married affects your rights and obligations in relation to financial matters, wills and estates.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.