DIVORCE

am I able to get a divorce?

You are able to apply for a divorce in a marriage if the relationship has irretrievably broken down, which means:

  • there has been a 12 month continual period where yourself and your former partner have been living separately and apart; and

  • there is no reasonable likelihood of the relationship being recommence or cohabitation resuming.

If these requirements have been met, our team can assist you with applying for divorce electronically via the Commonwealth Courts Portal.

E-filing for a divorce requires the following:

  • a copy of your original marriage certificate (if unavailable, we can obtain a certified copy from births deaths and marriages); and

  • funds available for the filing fee (we will provide details of this fee once engaged, as the amount may vary).

Further, depending on circumstances, the following may also be required:

  • in circumstances where you are filing for divorce on your own (i.e., without the co-operation of your partner), the application will need to be accompanied by an Affidavit of Service by Hand and an Acknowledgement of Service evidencing that the your former partner has been personally served;

  • if you have been unable to sustain a continual period of 12-months seperation, or are seperated but living togeter, an Affidavit providing further evidence to show that you have separated will be required;

  • in circumstances where the marriage certificate is in another language than English, a certified copy of a certified translation by a NAATI accredited translator will be required; and

  • if your time spent married was for less than 2 years, each party will need to attend marriage counselling and file a counselling certificate together with the divorce application (for referrals, please contact our team).

No Fault Divorce

In Australia our system provides for ‘no-fault’ divorce pursuant to the Family Law Act 1975. The only ground for divorce is an ‘irretrievable breakdown of marriage’, which is shown through separation of a period of at least 12 months.

Accordingly, the Court does not consider the ‘reason’ for why a marriage has broken down when approving an application for a divorce. This means that things like infidelity have no bearing.

Procedure

Following the application being filed with the Court, a Registrar will consider the application and determine whether a divorce order is made. Additionally, the Register will consider whether a 55A declaration is required (declaring that there are either no children, or that there has already been sufficient provision for the children’s care).

The Register will generally consider the application ‘in chambers’, meaning attendance is not required. The only time attendance by the parties is required is when the parties have a child under the age of 18 years

Once the divorce has been approved, a Certificate of Divorce will be issued and divorce will take effect either one month after the date the order is made or from the making of a section 55A declaration.

Please not that divorce can also render the whole or part of your will ineffective. For that reason, we recommend that you review your will. If you require assistance, please contact our office.

Time Limits

Once your divorce has been granted, the time limit to bring property settlement and spousal maintenance claims will commence.

For details of time limitations, please click here:

For further information, please reach out to us for a free 30 minute consultation.