Divorce is the formal legal ending of a marriage. It is totally separate and distinct from property arrangements following the breakdown of a marriage.
People usually get confused, thinking that divorce is linked to property settlement (including spousal maintenance), parenting orders and child support payments. This is not the case. Consider divorce to be merely the licence to re-marry.
To be able to get divorced you need to prove that your marriage has irrevocably broken down. This is confirmed when the parties have separated officially for 12 months or more, and can confirm that there is no likelihood of the relationship resuming.
Parties can be separated under the same roof, but cannot be in a physical relationship once they have separated.
To apply for a divorce, as outlined above, you must be separated for at least 12 months and you and your spouse must be:
- Australian citizens, OR
- Live in Australia and regard Australia as your permanent home, OR
- Ordinarily live in Australia and have done so for at least 12 months before the divorce application.
Of course, if you have been married overseas, you can apply for a divorce in Australia as long as you meet the above criteria.
Kindly note however, if you have been married for less than 2 years, you must attend counselling with a family counsellor and file a counselling certificate giving you the exemption or get the permission from the court to apply for a divorce without the appropriate certificate being obtained (this would be in a scenario where there has been a significant case of domestic violence etc).
A divorce application can be filed for by one party or jointly.
How to apply:
You can be legally represented or proceed to self-represent if you wish to apply for a divorce. You need to apply to the Federal Circuit Court, (if located in Western Australia, you will need to apply through the Family Court of WA). You can apply together via a joint application or solely (a sole application). Depending on whether you have children under the age of 18, you will be asked to appear in court for the Final Hearing. There is a filing fee for the divorce application, and it is in the sum of $930.00.
Kindly note that after the Final Hearing, if the court is satisfied that all criteria is met, a divorce decree will be granted. However, you will not be issued with the same until one month and one day after the divorce hearing.
There is no time period in which a divorce must be applied for. However, you should take special note of the fact that as soon as a divorce decree is obtained, you need to obtain a resolution in relation to property settlement within 12 months. If an amicable resolution cannot be reached, you must apply to the court for property orders, as a time limit for the same expires 12 months after the date of divorce.