What is divorce?
Divorce is the official ending of a marriage. When the divorce becomes final you are free to marry. 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 getting back together.
Your partner does not have to agree, and the law does not look at whose ‘fault’ it was the marriage broke down.
How do I get a divorce?
To apply for a divorce at the Federal Circuit Court, 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 for a divorce, and
- have been separated for 12 months.
You can still apply for a divorce if you were married overseas, or if you do not know where your partner is, as long as you live in Australia. If you are concerned your marriage might not be legal, get legal help.
Contact the court for more information and a divorce kit, with the forms you need. There is a fee for applying for a divorce, but in some circumstances you may not have to pay.
How much does it cost?
You have to pay a court filing fee. You can apply to the court for a reduction of the fee. Contact the court for more information.
What if there are children of the marriage?
The court will want to make sure proper arrangements have been made for the children, before allowing the divorce. See Children and parenting.
The court will want to know:
- where the children will live
- how they will be financially supported
- information about the children's health and education, and
- how they will maintain a relationship with both of you and other significant people.
What if we get back together for a short time?
You can get back together for up to three months without restarting the 12 month separation period. For example, if you are separated for four months, get back together for almost three months and then separate again for eight months, this will be considered a total of 12 months’ separation. However, if you were back together for four months only the most recent eight months would count as separation.
Can we live separately ‘under the one roof’?
You may be able to get a divorce if you live in the same house after separation, as long as you live separate lives. You may have to prove this. To decide if you separated ‘under the one roof’, the court looks at if:
- you sleep together
- you have sex or sexual activity
- 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 think of you as separated.
If this applies to you and you want a divorce, get legal advice.
Are short marriages treated differently?
Yes. If you have been married for less than two years, you can only get a divorce if you and your partner go to a counselling session, or if there are special circumstances. If your partner refuses to participate, you can still get a divorce. If this applies to you, 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 for financial matters, wills and estates.
How do I apply for a divorce?
You can apply for a divorce together (joint application) or on your own (sole application) at the Federal Circuit Court. If you apply on your own, you must ‘serve’ the other person with the application. Serving or ‘service’ is giving the other person the divorce paperwork so they know about the court proceedings. You must fill out certain forms to prove the other person has been ‘served’. You cannot serve your former partner personally, but you can by mail.
Do I have to go to court?
If you are making a joint application you do not need to go to court. If you are making a sole application and your children are under 18 and were part of the family prior to separation, you must go to court unless there are special circumstances.
What happens at court?
The court order for divorce is granted in two steps.
Step 1 - A divorce order is made if you meet all the requirements and the court is satisfied proper arrangements are made for any children of the relationship. This is a short-term order. This does not give you a divorce completely.
Step 2 - The divorce order usually becomes final one month and one day after it is made, unless the court is presented with a good reason for not granting the divorce within that time. The date the divorce order becomes final is the actual divorce date.
The court can order a shorter waiting period between the two steps in exceptional cases.
A copy of the divorce order is sent to you by post. You should keep it in a safe place as it is your proof of divorce.
How long does the process take?
You should allow several months from the time you file for divorce to the actual date of divorce. If there are problems with your application it may take longer.
When can I remarry?
You cannot remarry until your divorce order becomes final. Be careful not to set your wedding date too close to the expected date of your divorce order becoming final. If there is a delay, you will not be able to go ahead with your wedding until the problem is sorted out and the divorce is granted.
What if I do not want a divorce?
You may not want a divorce because you feel that the marriage is not over, or for religious reasons. However, not wanting a divorce is not sufficient ‘grounds’ (reasons) for opposing a divorce application.
Under the law, the only ground is ‘irretrievable breakdown of the marriage’. If your spouse wants a divorce and you have been separated for a year or more, the court will grant the divorce. You do not have to agree to the divorce or sign anything. The divorce order will still be made.
You can suggest relationship counselling but your spouse does not have to agree. A Family Relationship Centre or the Family Relationship Advice Line may be able to help.
If you believe that the marriage was not valid (legally binding), you can apply for a ‘nullity’ instead of a divorce. A nullity declares the marriage has no legal force. Get legal advice.
What if I disagree with the divorce application?
You can only oppose the divorce where:
- there has not been 12 months separation (as alleged in the application), or
- the court does not have jurisdiction.
If you do not want the divorce granted, you must file paperwork with the court and appear at the divorce hearing to explain why you want the application dismissed. Get legal advice.
If you want the divorce granted but disagree with the facts in the Application for Divorce, for example that dates of birth are incorrect or the details about the children are no longer correct, you need to file paperwork with the court and attend the divorce hearing to explain why. Get legal advice.
Do I need a lawyer to get a divorce?
Most people apply without using a lawyer. You can decide if you want a lawyer to help you. You can get legal help to sort out arrangements for children or property. See Children and parenting and Dividing your property.