Navigating Divorce in Australia: A Comprehensive Guide

KEY TAKE OUTS:

• In Australia, to file for divorce, you must be legally married, separated for at least 12 months, and meet residency requirements. The court does not consider the reasons for the marriage breakdown, as Australia follows a ‘no-fault’ divorce system.
• If you are separated and living under the same roof, it can be tricky to navigate.
• The standard application fee for divorce in Australia is $1,100, though reduced fees may apply for those facing financial hardship or eligible for certain concessions.

Divorce is a significant life transition, often accompanied by a mix of emotions and practical challenges. In Australia, understanding the legal framework surrounding divorce can help alleviate some of this stress. This blog will delve into the requirements for divorce, the application process, the differences between sole and joint applications, costs involved, and specifics for couples living under the same roof.

Requirements for Divorce in Australia

The Federal Circuit and Family Court of Australia has the power to deal with divorce under the Family Law Act 1975. The Court will not consider why the marriage has broken down as Australia has ‘no fault’ divorce. In order to file for divorce in Australia, certain legal prerequisites must be met:

1. You must be legally married and that marriage must be recognised under the Marriage Act 1961;
2. You or your spouse must either be an Australian citizen, a permanent resident, or have lived in Australia for at least 12 months before applying;
3. You must be separated for at least 12 months before filing for divorce; and
4. There is not reasonable prospects of reconciling the marriage.

What happens if the parties were married overseas?

Parties who were married overseas are still eligible for divorce in Australia as long as the above requirements are met to file for a divorce. As part of all divorce applications, the parties must provide their marriage certificate to the Court. If the parties are married overseas and their marriage certificate is not in English, they are required to have the marriage certificate translated to English. If you cannot locate your marriage certificate and have tried to contact all the relevant authorities in that country, you can still apply for divorce, however, you will be required to complete an Affidavit explaining the details of your marriage such as the date you were married, where you were married and why you cannot provide a copy of your marriage certificate.

What happens if the parties are living under the same roof?

Many couples face the challenge of living together while separated. In Australia, this situation does not prevent you from applying for divorce, but it does require additional considerations. If the parties are applying for a joint divorce, they are each required to file an Affidavit to prove they are separated. The Affidavit will need to include details of when the parties separated, the current living arrangements such as separate bedrooms and daily routines and who the parties informed of their separation. If one party applies for sole divorce, they are still required to file an Affidavit, however, a third party will also be required to file an Affidavit. A third party can include a family member, a friend or anyone who is aware that the parties have separated.

How to Apply for Divorce

In order to file for divorce, a divorce application must be completed and filed with the Court. Parties can either complete a sole or joint application. A sole application is when one party applies for a divorce, signs the application and serves it on the other party. A joint application is when both parties applies for a divorce together and both sign the application.

Once the application has been completed and filed with the Court, the parties will receive a divorce hearing date. The parties will only be required to attend if a party has filed a sole application and there is a child of the marriage under 18 years, if the parties have indicated they wish to attend the hearing or if either party has objected to the divorce being heard in absence of the parties.

Once the divorce hearing occurs, if the court is satisfised with the application, they will grant a Divorce Order. This Order will be issued one month and one day from the date of the hearing.

Costs of Divorce

Understanding the financial implications of divorce is crucial. In order to file a divorce application, the application fee with the Court is $1,100. Parties may be eligible for a deduction if any of the following apply:

1. They have a health care card, pensioner concessions card, Commonwealth seniors health card or any other card certifying entitlements to a concession issued by Services Australia or the Department of Veterans’ Affairs; or
2. They have received a grant of Legal Aid; or
3. They are receiving youth allowance, Austudy or Abstudy payments; or
4. They are under the age of 18; or
5. They are an inmate or otherwise legally detained in a public institution.

Parties may also be eligible for a deduction if they are suffering from financial hardship, however, one party or both must meet the requirements of the income test, the asset test and the day-to-day living expenses and liabilities test.

Conclusion

Divorce in Australia can be a complex process, but understanding the requirements and navigating the application steps can make the journey smoother. Whether you choose a sole or joint application, be mindful of the financial implications and the impact of living arrangements on the process. Seeking professional advice can provide valuable insights and support, helping you to move forward with confidence as you navigate this significant life change.

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ABOUT LUISA GAETANI:

Luisa is a distinguished Partner and Accredited Family Law Specialist at Coutts who proudly leads our esteemed Family Law team. Luisa started University in 2010 and commenced as a Paralegal and since her admission in 2014, Luisa has dedicated her practice exclusively to Family & Criminal Law, showcasing a deep commitment to providing comprehensive legal support.

Her unique blend of sensitivity and practicality sets Luisa apart, allowing her to forge a strong rapport and cultivate trust with her clients.

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ABOUT MELINA MANNA

Melina joined the Coutts team in May 2023 as a Paralegal, working in our Criminal & Family Law teams, from our Narellan office. She has now been admitted as a practicing Lawyer in the Supreme Court of New South Wales.

Melina is passionate about the law and strives to deepen her knowledge of the law and legal practice.

For further information please don’t hesitate to contact:

Melina Manna
Lawyer, Family Law
info@couttslegal.com.au
1300 268 887

This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.