Divorce and Separation

The Federal Circuit Court of Australia as well as the Family Court have the power to deal with divorces (see Part VI of the Family Law Act 1975).

The Family Court website sets out the process for applying for a divorce and also provides information on the requirements. You can have a look at that here: www.familycourt.gov.au

Although the process of applying for a divorce can be relatively straightforward, in some cases it can be more complicated and it is very important that all steps are completed in order to ensure that the divorce goes ahead.

The term ‘separation’ also has specific legal meaning.

If you would like further information in relation to divorce and separation please call or email us to make an appointment with one of our lawyers.

Requirements for applying for a divorce

In order to apply for a divorce in Australia, there are a number of elements which need to be satisfied, including:

one or both parties needs to have a sufficient connection with Australia;
The marriage needs to be one which is recognized by Australia;
The marriage needs to have been irretrievably broken down as demonstrates by the parties having separated for a period of not less than 12 months prior to the date of an application for divorce being made;
If there are children of the relationship then you need to set out that appropriate care arrangements have been made for the care, welfare and development of any children of the relationship under the age of 18 years, even if no formal arrangements are in place/ the arrangements are not agreed;
If the marriage was for less than 2 years, and the parties (or a party) wish to apply for a divorce then they may need to satisfy the Court that they have undergone relevant counselling in certain circumstances.

Separation

In order to get a divorce, the Court needs to be satisfied that the parties have been separated for more than 12 months immediately before filing the application for divorce.

It is possible to be separated but still living under one roof. However, if the period of 12 months prior to applying for the divorce involved a period where the parties were still living under one roof, but separated, then the Court will need evidence of the period of separation.

There are certain circumstances in which parties have separated and then reconcile. Whether those periods of reconciliation impact upon when the parties are said to have separated can be relevant not only to divorce but also to property settlement, which is separate from divorce.