How do I apply for a Divorce?

The breakdown of a marriage can be a traumatic experience. The Court system recognises this and the process of applying for a divorce is relatively straightforward.

Grounds for Divorce

The Family Law Act operates on a "no fault" basis. There is no need to establish that either party is at fault in order to be granted a divorce.

There is only one ground for divorce for married couples in Australia – an irretrievable breakdown of the marriage. This ground is established where the husband and wife have lived separately and apart for a period of 12 months. In some circumstances, it is possible to live separately and apart under the one roof, provided independent evidence exists that the marital relationship has broken down.

A Divorce Application cannot be filed until after the 12 month time period has elapsed. The Application is filed at the Federal Magistrates Court.

How do I file for divorce?

The Divorce Application is served on your spouse, and the hearing of the divorce takes place about 6-8 weeks after the Application is filed. If there are children of the marriage who are under 18 years of age, the applicant must attend Court when the divorce is heard.

Before granting a divorce, the Court must be satisfied that proper arrangements have been made for the welfare of the children. This includes housing, education, contact, health and financial support arrangements for the children.

If satisfied of those matters, the Court then grants a divorce order, which becomes final or absolute one month and one day later. You cannot remarry until the divorce decree becomes absolute.

Divorce and your Will

Divorce can have important ramifications on Wills, and we can advise you about preparing a new Will that recognises the change in your circumstances.

You do not need to be divorced before finalising arrangements about either care of your children or the financial aspects of separation. We can help you with the negotiation of a financial settlement or in commencing Court proceedings to protect your rights and those of your children.

It is important to remember that there is a 1 year time limit from the date your divorce becomes final in which to commence proceedings for property settlement or spouse maintenance.

Can I apply for Divorce if I live Overseas?

We regularly act for ex-patriate Australian or foreign nationals who were married in Australia, and advise them on how to apply for divorce in Australia. Most instructions can be taken by email or telephone and we can email documents to clients overseas to sign.

Back