In Australia, the process of getting a divorce is governed by the Family Law Act 1975. It is designed to be clear and accessible, ensuring that individuals can navigate the legal system with ease, whether they’re dealing with child-related issues, financial matters, or property settlements. If you are considering divorce, it’s essential to understand the steps involved in filing for divorce, the necessary documents, and the legal requirements.
Eligibility Criteria For Getting A Divorce In Australia
To apply for a divorce in Australia, there are a few eligibility requirements you must meet:
Genuine Intention To End Your Marriage
You must demonstrate a genuine intention to permanently end the marriage. This is proved by a separation of twelve months or more.
Separation For 12 Months & 1 Day
Under Australian law, you and your partner must have been separated for at least 12 months before applying for a divorce. Importantly, you can be separated and still live under the same roof. However, you must demonstrate that you are no longer living as a married couple and lead separate lives.
Australian Citizenship Or Permanent Residency
You or your partner must be an Australian citizen or resident or have been married in Australia.
Australia’s No-Fault Divorce System
The divorce process in Australia operates under a no-fault system. This means the court does not inquire into the reasons for the marriage’s breakdown. The only requirement is that you have been separated for 12 months and 1 day and that the marriage has irretrievably broken down.
Separation and Living Under One Roof
As stated, separation is a requirement for divorce, but this doesn’t mean you must live in separate homes immediately. You can still be under the same roof, provided you can demonstrate that you are leading separate lives and no longer acting as a married couple. If you have children, you’ll need to make proper parenting arrangements that are in the best interests of your children.
Divorce Online
To make the process smoother, you can file your divorce application online using the Commonwealth Courts Portal, which allows for quick submission of the necessary documents, including for those married overseas. The portal simplifies the submission process and saves you time compared to filing in person. It also enables you to receive prompt updates regarding the progress and status of your application.
Steps for Getting a Divorce in Australia
Although getting a divorce itself is quite straightforward in Australia, there are quite a few factors that you may need to address if you’ve been sharing a life, such as financial matters and parenting arrangements if you have children together.
Step One: Seek Legal Advice
Before you begin the divorce process, it is highly recommended that you seek legal advice to understand your rights and obligations and the best course of action for your situation. A divorce lawyer can guide you through divorce proceedings, property settlement, and any issues related to children, ensuring that proper arrangements are made.
Step Two: Gather Supporting Documents
To apply for a divorce, you must provide key documents, including your marriage certificate, proof of separation, and, if applicable, a counselling certificate. If you were married overseas, you may need additional documentation. The divorce application form will guide you through the process and name all the documents you need to submit.
If you have been separated under one roof for some, or all, of the required 12 month period, you will need to file affidavits with your application about your separated living arrangements, to demonstrate that you have been living separate lives during this period.
Step Three: Filing the Divorce Application
You can submit your divorce application in one of two ways:
- Sole application: One person applies for the divorce independently.
- Joint application: Both parties agree to submit a shared application.
To file the divorce application, you can use the Commonwealth Courts Portal for online submission or file it in person at the court registry. The filing fee for a divorce is $910, though you may qualify for fee reductions if you face financial hardship.
Step Four: Court Hearing
Once you’ve submitted your application, a divorce hearing date and time will be set. If there are children under the age of 18 involved in the divorce, you will likely need to attend a court hearing to discuss parenting arrangements. Both parties must present evidence of their separation and any arrangements made for children. If there are no children involved, the process will often proceed without the need for a hearing.
Step Five: Divorce Order & Waiting Period For Finalisation
Once the court grants the divorce, there is a one-month waiting period before the divorce is finalised. After this period, you will receive a divorce order, which is a legally binding document. Only after the divorce order is finalised can you legally remarry.
Parenting Matters
While you don’t need to formalise parenting matters with your ex-spouse before your divorce is granted, you will need to show the court that there are sufficient care arrangements in place for your children if they are under 18 years old. This can be done through an informal parenting plan that outlines proposed care arrangements. You may wish to have them finalised for consent orders later on.
Financial & Property Settlement
It is essential to address financial matters as part of the divorce process. A property settlement can either be agreed upon by both parties or ordered by the court. If you cannot reach an agreement on financial or property matters, including financial support such as spousal maintenance or child support, you can seek professional assistance from a family lawyer to negotiate or apply for a court order.
Time Limits For Property Settlement & Divorce
Another really important thing to be aware of is that the day that your divorce is finalised (one month and one day after your hearing date) marks the beginning of time limits for property settlement. This means that if either party wishes to make a claim for property or initiate property settlement, it must be done within one year of the divorce being finalised. It can begin any time after the one-year period of separation is finalised, though.
Name Change & Personal Documents
After your divorce is finalised, you may choose to change your name back to your unmarried surname. You will need to update your personal documents, including your passport, driver’s license, and financial accounts, to reflect your name change. This process can be time-consuming, and you’ll need to fill out application forms for each of these accounts and provide evidence of your marriage and divorce papers.
Divorce for Those Married Overseas
If you are married overseas and are seeking a divorce in Australia, there are additional steps and considerations to consider.
Marriage Certificate and Documentation
To apply for a divorce in Australia, you must provide a copy of your marriage certificate as part of your divorce application. If you were married overseas, the marriage certificate must be an official copy, and it will need to be translated into English if it is in another language. In some cases, additional documentation may be required to confirm the validity of your marriage abroad.
Jurisdiction for Divorce in Australia
To get a divorce in Australia, you or your partner must meet the eligibility criteria, including being an Australian citizen or permanent resident or having been married in Australia. If you were married overseas, the court system will consider whether you have a sufficient connection to Australia, such as:
- Australian citizenship or permanent residency.
- Living in Australia for at least 12 months before filing for divorce.
If you or your spouse were married overseas but have since moved to Australia, you may be eligible to file for divorce in an Australian court as long as one of you is an Australian citizen or permanent resident and you have been living in Australia for at least 12 months.
Filing for Divorce When Married Overseas
When filing a sole or joint application for divorce, whether your marriage took place in Australia or overseas, you will still follow the standard procedure. You must complete the divorce application form and provide:
- Your marriage certificate (with translation if necessary).
- Proof of your separation (such as the date of separation and how you’ve lived separately, if applicable).
- Payment of the filing fee unless you’re eligible for a fee reduction.
If your marriage ended overseas, ensure that you include all required documents to prove the authenticity of your marriage. Family law applies to all marriages, whether conducted in Australia or abroad, as long as the jurisdictional requirements are met.
Court’s Role in Overseas Marriages
The Federal Circuit and Family Court of Australia will typically have jurisdiction over the divorce application if you meet the eligibility criteria. If there are issues with jurisdiction, such as the marriage taking place in a country that does not recognise Australian divorce laws, you may need to consult with a family lawyer to understand how international divorce laws may apply to your case.
Annulments
In rare cases, you may be eligible to apply for an annulment rather than a divorce. An annulment is different to a divorce, because it treats the marriage as if it never legally existed. This process is typically used in cases where one of the parties was unable to consent to the marriage or where it was never consummated. An annulment is more complex and requires proof of exceptional circumstances.
Additional Cultural & Religious Requirements
Religious or cultural practices may impose additional requirements when it comes to divorce. If your marriage was conducted under religious or customary law, the terms of the divorce might be affected by those traditions. Additionally, religious leaders may require counselling or other processes before granting a divorce. If you intend to remarry in a religious context, ensure that you meet any specific requirements.
Christian Marriages (Catholic, Orthodox, Protestant)
In some Christian traditions, particularly in the Catholic Church, divorce is not recognised, and couples seeking separation may be required to apply for a religious and/or civil annulment. An annulment treats the marriage as if it never existed based on specific grounds, such as lack of consent or failure to meet the conditions for a valid marriage. While Australian law allows divorce regardless of religious views, individuals in these communities may need to navigate both legal and religious processes if they wish to remarry in the church.
Cultural & Indigenous Practices
In some Indigenous Australian communities, marriage may be based on cultural traditions rather than formal legal processes. Divorce within these communities may involve community elders or leaders, and cultural practices may dictate the terms of separation and reconciliation. While Australian family law applies, Indigenous Australians may face additional cultural considerations in managing divorce and may seek guidance from elders or community leaders to resolve marital issues.
Jewish Marriages
In Jewish law, a divorce requires a get (a religious divorce document), which must be granted by the husband, though the wife can request it through the religious courts if necessary. Jewish couples may also be required to attend counselling or mediation before a divorce is recognised.
Muslim Marriages
In some Islamic traditions, the husband must initiate divorce proceedings, often involving religious leaders, to ensure the process is carried out according to Islamic law. Additionally, certain Islamic communities may require counselling or reconciliation efforts before granting a divorce.
Same-Sex Marriages Before & After 2017
Prior to 2017, same-sex couples were not allowed to legally marry in Australia. However, after the legalisation of same-sex marriage in December 2017, same-sex couples can now divorce under the same rules as heterosexual couples. If you were in a same-sex marriage that occurred overseas before the law changed in Australia in 2017, your marriage is still legally recognised, and you have the same rights and obligations when applying for a divorce.
For the recognition of same-sex marriages conducted overseas, you can refer to Section 88EA of the Marriage Act 1961, which was introduced as part of the Marriage Amendment (Definition and Religious Freedoms) Act 2017. It specifies that a marriage that is valid under the laws of the country where it took place is considered valid in Australia. The 2017 changes repealed Section 88EA, which had previously restricted the recognition of same-sex marriages that occurred overseas.
This meant that same-sex couples who were married in countries other than Australia prior to 2017 had their marriages automatically recognised under Australian law from December 9th, 2017, when the Act came into effect.
Conclusion
The process of divorce involves several important steps and considerations. It may seem daunting, but with the right legal advice and preparation, you can navigate it successfully. Whether you’re dealing with children, financial matters, or property settlements, the Federal Circuit & Family Court of Australia provides a clear pathway for moving forward. If you are thinking about getting a divorce in Australia, consider seeking professional assistance from our family lawyers to help you understand your rights and obligations during this emotional and often complex process.