A Guide To Divorce in Australia

This document is a general guide to divorce law in Australia. In this Guide, we set out:

  • what divorce is and how it can be distinguished from other types of relationship breakdown;
  • when a couple is eligible to get divorced;
  • the requirements of separation;
  • the divorce application procedure;
  • overseas marriages;
  • marriages of short duration;
  • how much a divorce costs;
  • separation of property;
  • custody/care of children;
  • whether you need a lawyer; and
  • other resources that may be of assistance.

Please note that this Guide is intended as general information. For advice which relates specifically to your situation, we recommend you consult a legal professional.

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1. What is divorce?

Divorce is the legal event recognising the permanent breakdown of a marriage.[1] It occurs after an application is made to the federal court. As long as the requirements set out in the Family Law Act 1975 (Commonwealth) are satisfied, the court will make a divorce order. The divorce will be finalised one month and one day after that court order is made.

Note that the law relating to divorce is governed by Commonwealth Legislation (that is, law for all of Australia) rather than state/territory legislation and therefore applies in every state and territory. The law treats same-sex and opposite-sex marriages equally when it comes to divorce law.

Divorce must be distinguished from other events relating to relationship breakdown, including:

  • Separation. This is the date when a married couple cease ‘living together as a couple’. There is no hard-and-fast rule for determining when this date occurs. This is discussed in greater detail in section three.
  • The end of a de facto relationship.[2] The ending of a de facto relationship, in of itself, requires no particular legal formalities. Note, however, that the date of the ending of the relationship is relevant for property distribution purposes.
  • The end of a civil union/civil partnership. These relationships are regulated by state or territory law and are variously called ‘civil partnerships’ (ACT, Queensland), ‘domestic relationships’ (Victoria and South Australia), ‘registered relationships’ (NSW) and ‘significant relationships’ (Tasmania). These legal relationships end if the parties get married, or if either partner has applied (and had a court order granted), for an end to the relationship. Note that the application needs to be made in the state or territory in which the couple entered into that legal relationship.
  • Nullity. This is also sometimes called an ‘annulment’. This is a finding by the court that there was no marriage, even though a wedding ceremony may well have taken place. This requires applying to the court for a ‘decree of nullity’ and it is most commonly granted when there is evidence that the marriage was not truly consensual. The requirements for a nullity are set out in section 51 of the Family Law Act 1975.

2. When is a couple eligible to get divorced?

If you wish to apply to the court for a divorce in Australia, there are some requirements you must satisfy. These requirements are set out in section 39(3) of the Family Law Act 1975 which states that an applicant for divorce must be:

  • an Australian citizen; or,
  • domiciled in Australia; or,
  • ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.

Once the citizenship/residency requirement has been satisfied, an applicant also needs to satisfy the 'separation' requirement. Under section 48(1) of the Family Law Act 1975, divorce requires proving to the court that ‘the marriage has broken down irretrievably’. Section 48(2) then qualifies this requirement stating that this can only be proved by demonstrating that the parties separated and lived together separately for a period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.[3]

Note also that under section 48(3), the court will not make a divorce order if it considers that there is reasonable likelihood of cohabitation. This means that working out the date of separation becomes all-important.

3. What is the date of separation?

There is no hard-and-fast-rule for the court to determine when a separation began. It must make an overall judgement based on the facts of the particular case. The Family Court has previously emphasised that it is not merely physical separation, but separation of the marriage relationship itself that is the important consideration. In determining when this has occurred, the court will look to the intentions and actions of the spouses, with the exact considerations that apply depending on the marriage in question. The court has stated that the nature of the marriage relationship might be identified through:

  • the couple living under the same roof;
  • presence of a sexual relationship;
  • the existence of ‘mutual society and protection’;
  • supporting a child together;
  • recognition of the existence of the marriage both publicly and privately;
  • nurture and support within the marriage.

Other factors that might be relevant depending on the case include:

  • financial inter-dependence;
  • completion of domestic duties;
  • what government departments (e.g., centrelink) have been informed about a separation.

It is the breakdown of these elements that can, depending on the circumstances, mean a separation has occurred. Note that, irrespective of how the couple became separated, the fact of separation should be communicated from one spouse to the other.[5]

4. What is the divorce application procedure?

You may apply for a divorce either on your own (known as a ‘sole application’), or together as a couple (known as a ‘joint application’). The application requirements are slightly different, depending on the type of application. In a sole application, only one party needs to file the application. They must then file the application with an accompanying ‘affidavit’ (a sworn statement for submission to the court). In addition, the application must then be ‘served’ on the other party, which can be done either in person or by post.

In a joint application, a single application document is filled out and signed by both parties, with both parties signing the accompanying affidavit.

Note, divorce does not necessarily require court attendance. However, attendance is required if there are children under 18 years old.

5. What about an overseas marriage?

If you were married overseas, you may still apply for a divorce in Australia. Note, however, that one or other of the spouses needs to meet the citizenship or residency requirements outlined above in section two.

Note also that you will be required to provide the court with a copy of your marriage certificate. If it is in another language, it must be translated into English and accompanied by an affidavit from the translator.

6. What if I have been married for less than two years?

An application for divorce from a marriage of less than two years has slightly different requirements. This application also requires the couples to certify they have attended counselling. If one party refuses counselling, it is still possible to apply for a divorce, but the applicant will need to make reference to this in their accompanying affidavit.

7. How much does divorce cost?

You will be charged $910 for a divorce application, unless you are eligible for a reduced fee of $305 or a fee exemption. This fee is payable at the time of filing the application. Guidelines for fee reduction set out when fees may be reduced including such matters as:

  • being a recipient of a government department concession; or,
  • being able to establish financial hardship via an income declaration.

Note that the cost of legal advice or representation is an additional cost. The cost of this will depend entirely on the circumstances of your particular case and the lawyer that you use.

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8. Division of property and spousal maintenance

Usually, at the end of the marriage, there will need to be a decision made as to how money and assets are to be distributed between spouses. This requires going through a property settlement process which is entirely separate from divorce.

The rules under the Family Law Act 1975 for dividing property (see section 79) after a marriage breakdown are similar to those that apply to the breakdown of a de facto relationship and require working out:

  • what assets and debts you have;
  • the direct financial contributions from each spouse;
  • the indirect financial contributions from each spouse;
  • non-financial contributions to the marriage, such as caring for the children;
  • future requirements such as age, health, childcare and the ability to earn.

Note that unlike in some other jurisdictions (such as New Zealand), there is no automatic presumption that property is equally divided.

The court can also make orders for spousal maintenance which provide for ongoing financial support (see section 27 of the Family Law Act 1975).

For a helpful divorce and separation financial checklist go to Moneysmart.gov.au.

9. Care of the children

Both parents have legal responsibility for their children until they are 18 years old. On separation, parents should work out a parenting plan and come to an agreement on childcare.

If the parents cannot come to such an agreement, or it is otherwise inappropriate, they may apply to the court for a parenting order which will set out a range of matters including:

  • who the children will live with;
  • how much time they will spend with each parent;
  • any other aspect of their care or development.[6]

Note that it is common to be required to go through a family dispute resolution process before such an order is made.

10. Do I need a lawyer?

A divorce application can be made, and a divorce order granted without the need for either spouse to engage a lawyer. However, as divorce and any accompanying property settlement can substantially affect your legal position, it can be helpful to seek advice on the specifics of your particular case.

11. Would you like to learn more?

For more information on Australian divorce law and related matters see:

 

[1] There is nothing, however, to prevent that same couple from re-marrying in the future. Note also that if an order is yet to be finalised, and the couple has reconciled, they may apply for a 'rescission' of the order. This has the effect of cancelling the divorce.

[2] A de facto relationship is defined in section 4AA of the Family Law Act 1975 as occurring where a couple live together on a ‘genuine domestic basis’. In addition to satisfy a range of criteria set out in the Family Law Act 1975, it is also a requirement of a de facto relationship that neither partner be married or related. Note that Western Australia has its own regime for de facto relationships governed by part 5A of the Family Court Act 1997 (WA).

[3] Section 50 of the Family Law Act 1975 does provide that if after separation, the couple co-habits again for less than three months, before separating again, this does not restart the 12-month and one day separation period. Note, however, that this may only occur once.

[4] 25 FLR 450 at 455.

[5] See In the Marriage of Falk (1977) 29 FLR 463.

[6] See Part VII, Division 5 of the Family Law Act 1975.

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