Breaking up a relationship is never easy and often involves many steps, including property issues, children issues, and divorce. In Australia, a divorce can be obtained in the Australian Family Court (if you live in Western Australia) or the Australian Federal Circuit Court.
The Family Act 1975 established the principle of “no-fault divorce”, which means that the court does not consider the reasons for the end of the marriage and is not required to give reasons. The only ground for divorce is that the marriage has broken down irretrievably, with no possibility of reconciliation.This is evidenced by the requirement that the parties must have lived apart for at least 12 months prior to filing the divorce petition
Divorce is the official end of a marriage. When the parties first separate, nothing needs to be officially done for the purposes of divorce. To apply for a divorce in Australia, the parties need to have finalized separation 12 months before the application for divorce, there must be no chance of reconciliation, and certain legal criteria need to be met, which are:
1. The party applying for divorce or their spouse must make Australia their home and intend to live in Australia; or
2. The person applying for divorce or their spouse is an Australian citizen by birth, descent or acquisition of Australian citizenship; or
3. Ordinarily reside in Australia and have lived there for 12 months before the date of divorce.
separate under the same roof
In today’s real estate market, it is understandable that people cannot always move out of the property immediately due to financial circumstances or the desire to continue living in the previous marital residence to care for the children. This does not preclude someone from filing for divorce, but does mean that additional evidence needs to be presented to the court to prove that the parties are indeed separated and living different lives, despite living under the same roof.
less than two years of marriage
Generally, unless there are extenuating circumstances, if the parties have been married for less than two years, they must provide additional information and conduct counseling and submit proof of counseling. Counseling can be arranged through the Family Relations Advice Line. An affidavit will need to be filed with the court if one party fears for their safety, or is genuinely unable to attend the session because the other party is missing or overseas.
overseas marriage
Out-of-town weddings are becoming more and more popular, with many choosing to hold their weddings overseas. Just because the wedding took place overseas doesn’t mean a divorce can’t be filed in Australia. As stated above, if the party or spouse applying for divorce considers Australia as their home and intends to reside there indefinitely, or is an Australian citizen by birth or descent, becomes an Australian citizen by grant and ordinarily resides in Australia and as such You can apply for divorce in Australia 12 months before applying for divorce.
As with domestic weddings, a copy of the marriage certificate is required. If the certificate is not written in English, the applicant will require its English translation and an affidavit from the translator.
overseas divorce
If a divorce is applied for overseas, Australia will recognize the divorce if it was effected under the laws of that country.
Objection to Divorce Application
If the parties have lived apart for more than 12 months, the chances of opposing a divorce application are greatly reduced. A party cannot oppose a divorce application solely on the grounds that he or she does not want a divorce. There are two main reasons why a divorce application may be opposed, namely:
1. The separation has not been completed for twelve months or more as stated in the application; or
2. The court has no power to deal with divorce applications.
If the divorce is opposed on the above grounds, a Divorce Response Document will need to be filed with the court outlining the grounds for the opposition and the order sought, and the other party will need to appear in court when the divorce is registered.
Property and Child Issues
While one party cannot file for divorce unless they have been separated for 12 months or more, the parties can begin negotiations over property issues and child arrangements at any time after separation. Because both parties have to wait a long time before filing for divorce, many issues related to children and property are resolved before filing for divorce.
Once the divorce is final, both parties must begin property or spousal support proceedings within 12 months. If estate actions are brought “over time,” the party bringing those actions will need the leave of the court and must show that they will suffer hardship if such leave is not granted.
With regard to children, the court must be satisfied that appropriate accommodations are in place for the child. This does not mean that the arrangements have to be formal or uncontroversial, but that the court must be satisfied that the children are being properly cared for and provided for.
