Australia has a no-fault system of divorce.
The Family Law Act 1975 (Cth) defines “divorce” as the “termination of a marriage otherwise than by the death of a party to the marriage”.
The Family Court, state Supreme Courts and Federal Circuit Court have the jurisdiction to grant a divorce or a decree of nullity to either Australian citizens, persons domiciled in Australia or persons who are an ordinary resident of Australia and have been so for the 12 month period prior to proceedings being instituted. Proceedings are usually brought in the Federal Circuit Court.
A party may make an application for divorce if there has been an irretrievable breakdown of the marriage and the court is satisfied that the parties have separated and lived separately for a continuous period of 12 months before the application and there is no reasonable likelihood of the cohabitation being resumed. The divorce order takes effect 1 month after the date on which the divorce order is made.
The steps to be taken when seeking a divorce are as follows:
- Complete an Application for Divorce which can be obtained by downloading the Application for Divorce Kit.
- Swear or Affirm the application in the presence of a lawyer, Justice of the Peace or other authorised person.
- Make two copies of the application and supporting documents.
- File the an original and two copies of the application and a copy of the marriage certificate at a family law registry. The documents may be filed in person at the registry or by post. A filing fee must be paid.
- Receive a hearing date and documents, which the court will give you at the time of filing the application.
- Serve a sealed copy of the application and information brochure on your spouse at least 28 days if your spouse is in Australia, or 42 days if your spouse is overseas.
- Attend the hearing. If there is no child under 18, you are not required to attend. If there is a child under 18 and the application is a joint application, you are not required to attend. If there is a child under 18 and the application is a sole application, your are required to attend.
- Outcome. If the application is successful, the court will grant a divorce order which will become final one month and one day after it is made, unless another order is made. The court will then send a copy of the order to the husband and wife.
For further information, go the Family Law Court’s website.
1300 00 2088