In Australia, divorce is simply the ending of the marriage and can be applied for by filing an Application for Divorce with the Federal Circuit Court of Australia. Any issues arising between you and your partner regarding the ongoing parenting arrangements and the division of property will be dealt with separately from divorce proceedings.
Australia operates on the basis of ‘no fault divorce’. Therefore the reasons for the breakdown of the marriage will not be a concern. What the Court is concerned to know however, and what constitutes the only grounds for a divorce, is whether the marriage has irretrievably broken down.
To demonstrate that your marriage has irretrievably broken down you will have to show that you have been living separately for at least 12 months and 1 day. You won't be able to make an application for divorce until this has taken place. This shows the Court that it is unlikely that you will be restoring your relationship. It is possible for you to separate but still live together in the same home, however you will be required to prove that you were separated during that time.
If you have been married for less than two years, you must attend counselling to explore the possibilities of reconciliation before you can file an Application for Divorce. If you don’t want to attend counselling, you will need to seek the permission of the Court before you can file an Application for Divorce.
Applications for divorce can be made by either one party to the marriage or both parties. Once the application is filed, the Court will set a date for a hearing. In most instances you will not be required to attend.
When there are children of the marriage who are under the age of 18, the Court will need to be satisfied that proper arrangements have been made for their care, welfare and development. Such arrangements can be evidenced through a parenting plan or consent orders which have been filed with the Court.
Once the divorce has been granted by the Court it usually takes effect one month and one day later.
Please note the answers provided are for your general information only and we ask you to call our office on 02 6331 2911 to obtain detailed legal advice for your individual situation.
Lauren Ryan, Family Law Solicitor, Kenny Spring Solicitors