Written by Emily Woodhouse , 23 February 2023
There is only one ground for divorce in Australia; that your marriage has broken down irretrievably.
Unlike many jurisdictions overseas, it is not necessary to prove adultery, insanity, desertion or any other ground.
This ground can be established, and an Australian divorce order made, if the court is satisfied that you and your former spouse have been separated for at least 12 months and there is no reasonable likelihood of cohabitation resuming.
You must also meet the jurisdictional requirements for a divorce in Australia, being that you or your former partner:
- regard Australia as your home and intend to live in Australia indefinitely;
- are an Australian citizen by birth, descent or grant of Australian citizenship; or
- ordinarily live in Australia and have done so for the 12 months immediately preceding filing for divorce.
If you have been married for less than two years at the date of filing your application for divorce, you must attend counselling with your former spouse and file a certificate with the court confirming you have attended counselling. If you do not attend counselling with your ex spouse, you will have to lodge an affidavit requesting the court’s permission to apply for a divorce, which will only be granted in special circumstances such as you not being able to locate your former spouse, your former spouse refusing to attend counselling or there being a history of violence and abuse in your relationship such that it is not safe for you to attend counselling.
Divorce applications can be made on a sole or joint basis. Joint applications are signed by both parties. If your ex-spouse won’t agree to signing a joint application, you can file a sole application without their consent but you will need to arrange for your ex-spouse to be served with your application and file proof of service with the court.
At the time of filing your application for divorce in court, you will also need to file your marriage certificate, proof of jurisdiction in some circumstances (e.g. an Australian citizenship certificate, Australian passport or visa) and counselling certificate if you have been married for less than two years at the date of filing. If you were married overseas and your marriage certificate is in a foreign language, you must file an affidavit of a qualified translator attaching a translation of the marriage certificate.
Once you have filed an application for divorce, a hearing date will be allocated usually within four months’ time (depending upon the registry the application is filed in).
If you have filed a sole application for divorce and don’t have children under 18 years old, or you have filed a joint application, neither you nor your former spouse will need to attend court for the divorce hearing. The divorce can be granted in your absence. If, however, you have filed a sole application and have children under 18 years old, you will be required to attend court at the divorce hearing.
Once the divorce order is made, the order will come into effect one month and one day after it is granted, at which time your marriage is dissolved.
Importantly, the granting of a divorce order triggers a limitation period where you and your ex-spouse have 12 months from the date your divorce order becomes final to commence proceedings in court for property settlement and/or spousal maintenance or finalise your financial matters in a legally binding way (consent orders or binding financial agreement).
If you require any assistance in relation to filing an application for divorce, or if the limitation period has commenced and you require advice in relation to property settlement or spousal maintenance, please do not hesitate to contact our Emily Woodhouse at Hartley Family Law for assistance.
