Divorce
When can I get divorced?
You can make an application for Divorce (individually or jointly with your Husband or Wife) if your marriage has irretrievably broken down and after you have been separated for a continuous period of not less than 12 months.
In order to grant a Divorce, the Court must be satisfied that:
the marriage is irreconcilably broken down and there is no reasonable prospect of reconciliation;
the parties have been separated (even under the one roof) for a period of not less than 12 months;
where there are children of the marriage who are under the age of 18, that there are proper arrangements in place for the care of those children (including living arrangements and arrangements for their financial support).
Separation occurs where one or both parties form the intention to sever or not resume the marital relationship, this intention is communicated (directly or by conduct) and acted upon or alternatively, one or both parties acted as if the marital relationship has been severed. Whether or not the marriage is irreconcilably broken down will depend upon the circumstances of each individual case and, if a Divorce is contested, the Court may need to examine and contrast the state of the parties’ marriage before and after the alleged separation, including the parties’ sexual relationship (and the exclusivity of that relationship), whether the parties maintained separate bedrooms, whether the parties ordinarily socialised with one another and their nurture and support of one another and the children of the marriage. The Court may be satisfied that there has been a “real breakdown in the marriage”, even if the parties continue to share the family home and share household chores.
You do not need the consent of the other party to apply for a Divorce (provided you can satisfy the Court in relation to the matters above). The Family Law Act makes it clear that the reason why the marriage has broken down is irrelevant; “the parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of the parties”.
If the Court is satisfied that the grounds for a divorce are proved, it will make an order dissolving the marriage. That order becomes final (that is, you are officially divorced) one month and one day later. An application for Divorce is brought separately to and is independent of any application for parenting orders or a property settlement. An application in relation to property, financial or parenting matters can be brought prior to a Divorce however, property proceedings must be commenced within 12 months of a Divorce being granted (unless with the Court’s permission).
To apply for a Divorce you will need your Marriage Certificate (including an English translation of your Marriage Certificate if required) and documents evidencing your Australian citizenship, if applicable. We are happy to help with your Divorce or you might like to consider the Federal Circuit and Family Court of Australia Divorce Kit:
