DIVORCE

QUESTION: Who can apply for a Divorce?

ANSWER: You can apply for a divorce together (joint application) or on your own (sole application) at the Federal Magistrates Court of
Australia. You can get a free divorce kit from the family law courts website, which has all the forms you need.

You can apply for a divorce in Australia if either you or your spouse:

regard Australia as your home and intend to live in Australia indefinitely, or
are an Australian citizen by birth, descent or by grant of Australian citizenship, or
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must complete an Application for Divorce and file it with the Court and pay the application fee. You may be eligible for a fee exemption or waiver and can make an enquiry at the Court registry; for example, if you hold certain government concession cards or you are experiencing financial hardship.

QUESTION: What does the Court consider when granting a divorce?

ANSWER: The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no
reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one
day in order to satisfy the Court that the marriage has broken down irretrievably. It is possible to live together in the
same home and still be separated.

If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

QUESTION: Can I oppose a divorce application?

ANSWER: If you have been separated for more than 12 months, there are limited grounds on which to oppose a divorce application, including:

there has not been 12 months separation as alleged in the application, or
the court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file a Response to Divorce, setting out the grounds on which you seek the dismissal and you must appear in person on the hearing date. If you want to file a Response to Divorce, you need to file it at a family law registry:

if served in Australia - within 28 days of the application being served on you, or
if served outside of Australia - within 42 days of the application being served on you.

QUESTION: Must I Attend Court?

ANSWER: If you have made a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from attending.

If you do not have children under 18 and your spouse has not filed a Response, you can elect to have the divorce heard in your absence.

If a respondent has completed and filed a Response to Divorce, he or she should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence.

If a respondent has, in a Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.

QUESTION: How will the divorce affect arrangements for our children, property and maintenance?

ANSWER: The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:

make an agreement with your spouse and file it with a court, or
seek orders from a court, where you and your spouse cannot reach an agreement.

QUESTION: What is meant by separation under the one roof?

ANSWER: It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as 'separation under the one roof'. If this applies to your situation, you need to prove to the Court that you were separated during this time.

If you are applying for divorce by yourself, you need to prepare an affidavit. If you are filing a joint application, both you and your spouse need to prepare separate affidavits. The Court also requires another person (not your spouse) to prepare an affidavit that contains as much information as is known to them about the separation.

In your affidavit, you need to prove that there has been a change in the marriage, gradual or sudden, showing you and your spouse have separated. You will need to explain such things as change in sleeping arrangements, reduction in shared activities or family outings, decline in performing household duties for each other, division of finances; for example, separate bank accounts, and any other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation.

Your affidavit should also explain:

Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation;
You should also discuss living arrangements you have made for any child of the marriage under 18 years during the time you were living under one roof;
what government departments you have advised of your separation;
if you receive a government benefit; for example, Centrelink benefits or child support;
If correspondence has been received from these departments about your separation, attach a copy to your affidavit.

QUESTION: I have been married for less than 2 years. Can I still get a divorce?

ANSWER: If you have been married less than two years and want to apply for a divorce, you must either:

attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse, or
if you have not attended counselling, seek permission of the Court to apply for a divorce.

The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.

QUESTION: I married overseas - can I get a divorce in Australia?

ANSWER: If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:

You regard Australia as your home and intend to live indefinitely in Australia
You are an Australian citizen or resident, or
You are an Australia citizen by birth or descent;
You are an Australia citizen by grant of an Australia citizenship ;
You ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file an English version of the Marriage Certificate with an Affidavit attesting to its truth from the translator.

QUESTION: I can’t find my spouse to serve a divorce application, what do I do?

ANSWER: If you have made a sole application, you need to serve the divorce application on your spouse. If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the Court for:

substituted service, or
dispensation of service.

QUESTION: What happens when I go to Court?

ANSWER: When your matter is given a Court listing you will be required to attend Court. All Divorce Applications are heard in the Federal Magistrates Court. The Magistrate or the Registrar will need to be satisfied:

That your spouse has been served with the application. If your spouse does not attend Court you will be required to provide an Affidavit of Service.
That care arrangements are in place for any children of the marriage under the age of 18 years.