Understanding Australian Divorce Law | Filing for Divorce in Australia
After you have been separated for at least one year, you can apply for a divorce. Divorce is the court’s recognition that a marriage no longer exists and enables you to then re-marry.
A common misconception is that divorce and property settlement are the same thing, however this is not the case. Divorce ends your marriage so that you are no longer husband and wife. Property settlement only deals with dividing your assets and liabilities. You can have a property settlement without asking for or obtaining a divorce.
The first step in becoming divorced requires either the husband or the wife to file a divorce application in the Federal Magistrates Court of Australia. Before granting a divorce, the court must be satisfied of the following:
- That you have lived separately and apart for at least 12 months prior to the filing of the divorce application.
- That there is no reasonable likelihood of you resuming married life.
- If there are children under 18, that there are proper arrangements in place for their care.
- If you have been married less than two years that you have attempted reconciliation counselling
These issues are considered at a court hearing. In certain circumstances you can ask the court to grant your divorce without you or your spouse attending this hearing.
You will not be able to remarry until your divorce becomes final. This is usually a month and one day after the divorce hearing.
More specific questions on Divorce are answered below.
I have separated from my wife, how soon can I remarry?
In order to remarry you must be divorced. You must wait one year from the date of your final separation before you can file for divorce. After filing the documents, your divorce is listed for hearing by a court. The hearing date will be at least one month and sometimes up to three months after you file. If the court grants your application your divorce becomes final one month later. You cannot remarry until the divorce is final.
My husband and I agree on a Divorce, do we have to wait a year?
Yes, you still have to wait the year from the separation date before filing your application. There is no way to shorten that period.
What is separation?
Some people think that you need to sign a document or register the separation. That is not the case. You are separated if all of the following apply to you and your spouse:-
- One or both of you have decided that the marriage is over;
- The decision that the marriage is over has been communicated;
- One or both of you must then act on that decision either by living apart or, if you remain in the same home, by acting in such a way that it is clear that the relationship is over.
My wife and I are separated but have continued to live under the same roof.
Can we get a Divorce?
People remain under the same roof for various reasons after separation. The reasons can be financial such as waiting for a home to sell or the inability to afford separate households. You can obtain a divorce if a friend or adult family member corroborates that you have been separated for at least one year. That person is required to swear an affidavit confirming they visited your home regularly and observed a change in your household after separation e.g. that you and your spouse had separate bedrooms, you told friends and family you were separated, you didn’t perform household chores for each another or eat your meals together.
How do I get divorced?
The first step involves you and/or your spouse filing an Application for Divorce (in triplicate) and a copy of your marriage certificate with the Federal Magistrates Court. If you and your spouse have agreed to make a joint application that is the last document you will need to file. With a joint Application you can also elect not to appear at the court hearing. Once your divorce has become final the court will send the divorce order to you through the mail.
If your spouse is not prepared to sign a joint divorce application then the process is a little more complicated. There will be an additional step of serving your spouse with a copy of the application and proving service to the court by filing an affidavit to that effect.
If there are children under eighteen, unless the application is joint you must appear at court on the day of the hearing.
My husband is not paying any Child Support for our children. Can he get a Divorce?
Where there are children under 18, a court will only grant you a divorce if proper arrangements are in place for their care. That includes matters such as the payment of child support and children spending appropriate time with both parents.
If you apply for a divorce and you are not paying proper support for your children, your spouse can object to the divorce. Unless you can satisfy the court that arrangements are appropriate in the circumstances you will not get your divorce.
My marriage was an absolute disaster and we separated within a year, are there any special rules that apply?
If you have been married less than two years at the date you file your application you must attempt reconciliation counselling before filing. As you can’t file until you have been separated for at least one year this rule only applies to very short marriages – effectively ones that lasted one year or less.
I separated on the first day of September 2010. What is the earliest date on which I can file my Application for Divorce?
The earliest date you could file your application would be the 2 September 2011. In layman’s terms the one year’s separation is a year and one day. It is the same with the divorce order. If your divorce is granted on 1 March 2011, it would become final on 2 April 2011.
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