Divorce and Separation

Divorce is a legal process for formally ending a marriage. Divorce laws in Australia are regulated by the federal government and operate under national laws. Therefore, divorce laws and procedures are uniform across all states and territories in Australia. The Family Court of Australia is the only court that can grant divorces in the country. It’s important to note that divorce does not finalize arrangements for child custody or property division, as separate processes are required to formalize these arrangements.

The Divorce Process in Australia

Step One: Separation

Ending a shared life can have various reasons. In Australia, the divorce system is “no-fault,” meaning the court does not need to know who caused the marriage breakdown, as not all marriages succeed. The only legal basis for obtaining a divorce in Australia is the “irretrievable breakdown” of the marriage. To prove that the marital relationship is irretrievably broken down, spouses must have lived separately and apart for at least 12 months. Separation typically means that the husband and wife live separately at different addresses. However, in some cases, they may still live under one roof but lead separate lives. To prove this type of separation, you must provide further details in a written affidavit to the court.

Step Two: Residency Status in Australia

Before initiating divorce proceedings in Australia, both parties must meet one of the following residency requirements:

• Consider Australia as their permanent place of residence.
• Be an Australian citizen.
• Have resided in Australia for at least 12 months before applying for divorce.

The divorce application is submitted online through the Family Court of Australia’s portal. If both spouses agree to the divorce, they can file a joint application. However, if one spouse does not cooperate with the divorce request, they cannot prevent the other from seeking a divorce. Nonetheless, the applicant must file an exclusive divorce application, pay the application fee, and serve divorce papers to their former spouse.

Step Four: Notification of Divorce Proceedings

After filing for divorce with the Family Court of Australia, the applicant must inform the other party, unless it is a joint application. This notification is known as “service.” The primary purposes of service are to ensure the other party is aware of the divorce application and the court hearing date.

Step Five: Divorce Hearing

Once the divorce application is lodged and all necessary steps are completed, a date is set for the court hearing. This process may take several months. Attendance at the divorce hearing is not mandatory, unless there are infant children. If all divorce documents are complete and accurate at the hearing, the court will finalize your divorce then and there. Your divorce becomes final one month and one day after the court’s positive decision. Afterward, the court issues your divorce certificate, marking the end of the process.

Divorce can be a complex and emotionally challenging process, requiring careful navigation of legal intricacies and personal dynamics. Enlight Legal & Migration have extensive experience in helping clients understand their rights and responsibilities under family law. Contact us today to learn how we can assist you.