Applying for a divorce - Part 1 of 3 Articles (Family Law)

Applying for a Divorce can be an emotional and difficult decision.

Australia has a no-fault divorce system. The Court is not interested in why your marriage ended. The grounds for a divorce need only be that the marriage has broken down and there is no likelihood that the parties will reconcile.  The Federal Circuit Court of Australia has the jurisdiction or power in Australia to dissolve the marriage.

It is important to note that applying for a Divorce is completely separate to a property settlement or arrangements for children.   It is also important to note that proceedings for property or maintenance orders may be brought at any time after separation but requires the leave of the court if brought more than 12 months after a decree of Divorce.

Can I apply for a Divorce?

Before you can file for a Divorce you must be able to state and in some cases show:

• That you regard Australia as your home and intend to live in Australia indefinitely; or that you are an Australian citizen by birth, descent or by grant of Australian citizenship; or that you ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
• That you have been separated for a period of 12 months and 1 day;
• That you were married by providing a copy of the Marriage Certificate;
• That your marriage has irretrievably broken down;

If your marriage has been less than two years in duration at the date of applying to the Court you will also need to file a counselling certificate.  If you need to arrange counselling you can contact the Family Relationships Advice Line on 1800 050 321.  In the event you are not able to attend counselling (ie due to domestic violence issues) you will need to file an Affidavit with your Application setting out the special circumstance you wish to be considered.

There are also additional documents required in the event you wish to file your Application if you have separated for more than twelve months but remained living under the one roof.

Should I make a joint application or sole application?

If both parties wish to file for Divorce and can work together to complete the Application, a joint application is the best option. If the Application for Divorce is a joint application, no service of the documents is required and the filing fee should be borne equally by the parties.

In the event that the parties are unable to jointly apply for the Divorce, one person may make a sole Application for Divorce.  If the Application for Divorce is a sole application, you must serve on the respondent the following documents:

• The sealed Application for Divorce;
• A copy of the ‘Marriages Families and Separation Brochure;
• Any other documents filed with the Court.

Please see Part 2 of 3 Articles for more detail on where you can obtain the Application for Divorce and how to file.

Please see Part 3 of 3 Articles to ascertain how to serve the Application for Divorce, details relating to the Hearing and when the Divorce will be granted.