In Australia, divorce is a significant step that a former couple can take if they satisfy several legal requirements. The Family Law Act 1975 creates the legal framework surrounding divorce and the requirements that must be met before a couple can dissolve their marriage. A person applying for a divorce in Australia must satisfy these requirements before the Federal Circuit and Family Court of Australia (“the court”) will grant their divorce.
Applying for divorce in Australia
A person can only apply to the court for a divorce in Australia if they or their spouse have sufficient connection to Australia to justify the court using its jurisdiction to dissolve their marriage. This means that one or both people must:
- be an Australian citizen by birth, decent or grant of citizenship, or
- consider Australia their home and intend to reside in Australia indefinitely; or
- ordinarily live in Australia for at least 12 months immediately before filing for the divorce.
Recognition of marriage
It is also only possible to apply for a divorce in Australia if the marriage itself is recognised under Australian law. Any legal marriage that is properly solemnised in Australia will be recognised. The court also has jurisdiction over legal marriages conducted outside Australia.
If a couple was married overseas, the marriage must also be valid according to the requirements of the Marriage Act 1961. As such, the marriage must have been entered into with the informed consent of both parties, without any issues of mental incapacity, duress, fraud, or mistaken identity. Australian law also does not recognise bigamous, polygamous, or incestuous marriages and therefore cannot grant divorces in these cases. Finally, Australia does not recognise the marriage of a minor child, even if the marriage is legal in the country where it took place.
Irretrievable breakdown of marriage
Australia has a no-fault divorce system, so the only ground for divorce is the “irretrievable breakdown” of the marriage. In order to prove this requirement, the applicant must satisfy the court that they have lived separately from their spouse for at least 12 months, with no reasonable chance of resuming their life together.
It is, however, possible to be legally separated and continue residing in the same home. This is known as “separated but living under one roof”. The court recognises that it is sometimes necessary or desirable, because of finances or care of children, for a couple to continue to cohabitate after they separate. In that instance, both spouses should file affidavits detailing their living arrangements to swear that they have been genuinely separated for the necessary year. This claim can be supported by providing affidavits from anyone who has actual knowledge of the fact that they were separated while living under one roof.
Shorter marriages
For couples who have been married for less than two years, there is usually an extra requirement before they can apply for a divorce. These couples must attend marriage counselling with a family therapist (or other nominated counsellor) to consider reconciliation before proceeding with the divorce. Once the counselling is complete, if the former couple still wish to divorce, the counsellor will provide a certificate that is attached to the divorce application stating that the couple discussed the possibility of reconciliation. The two-year time frame is calculated from the date of marriage to the date of divorce application to the court.
The court may grant permission to waive this requirement under certain circumstances. If a spouse in a short marriage wishes to obtain a waiver, the applicant should file an affidavit with their divorce application explaining the basis for the request. Common exceptions to this requirement include that the applicant cannot locate their spouse despite rigorous attempts or their spouse refuses to attend counselling under any circumstances, or there is a history of domestic violence that makes it unsafe for the party to attend counselling with their spouse.
Children
While divorce principally deals with the legal dissolution of the marriage, the care of children is always an important consideration for the court. The Family Law Act emphasises the best interests of the child as the primary focus of all family law matters. If a divorcing couple has minor children from the marriage, the court will only grant a divorce if there is evidence that proper arrangements have been made for the care of the children.
The applicant should provide a clear proposal for the future care of the children. It is essential to note here that while the court looks for proof that the parents have turned their attention to making appropriate plans for the children’s care, a divorce decree does not decide issues about parenting arrangements.
Limitation periods
It is important to understand that the granting of a divorce starts the clock on the one-year limitation period to finalise property matters. Most financial proceedings related to the dissolution of a marriage must begin within 12 months of the divorce order unless agreed between the parties.
It is only possible to apply for a divorce in Australia by meeting specific legal requirements. Given the legal complexities involved in initiating a divorce proceeding, it is highly advisable to seek legal advice at the outset. Please contact or phone Taylor Rose on 1800 491 469 for advice on the legal requirements for divorce in Australia.
