Separation & Divorce The Basics

Where To Start

The first thing to understand is the difference between separation and divorce.

Separation

Nothing formal needs to happen for separation to occur. It usually happens when a couple stops living together, and the intention that the relationship is over is communicated to the other person.

You are able to deal with parenting, property and child support matters once you have separated. You do not need to be divorced to resolve these matters.

Divorce

The effect of a divorce Order is to dissolve a marriage. It does not resolve property, parenting or child support matters. It also sets a time limitation period running for when proceedings can be commenced for a property settlement.

Do you need a divorce?

If there is any prospect of reconciliation, counselling services are available in this area and the Family Law Pathways Network can put you in touch with such services. Even if you remain separated, provided that your parenting, property and child support matters are resolved, you may decide that you do not wish to go through the process of a divorce.

How do you apply for a divorce?

Are you eligible to apply?

You can apply for a divorce in Australia if either you or your spouse:

  • Regard Australia as your home and intend to live in Australia indefinitely, or
  • Are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

In Australia, there is only one ground for divorce – this is that the marriage has broken down irretrievably. All that is needed to prove this ground is that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life.

How to apply

You will need to complete an application for divorce. A great spot to start is at www.divorce.gov.au this website has all you need to know about divorce.

What will court consider?

The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.

The only ground for divorce is that the marriage has broken down irretrievably. If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

What happens at court?

If the Divorce Orders is made after the Court has considered the application, a period of one month will pass after which the Court will issue a certificate of Divorce.

How much will it cost?

Divorce is not free; there are fees that you need to consider when filing for a divorce. You can contact the Family Court National Enquiry Centre on 1300 352 000. Alternatively you can check out the fees section on the Family Court website (www.familylawcourts.gov.au)

Please note: This factsheet contains general information only. It does not constitute legal advice. If you need legal advice please contact a solicitor.