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How to Get Divorced

By 12 October 2013Family Law

Divorce in Australia is not a walk in the park. You have to meet the conditions required under the law and convince the Court that you are qualified to apply for divorce.

Conditions in filing for divorce in Australia

The following are the conditions you need to satisfy before filing for divorce in Australia:

– The spouse applying for divorce must prove that he/she is an Australian citizen by birth; or an Australian by descent, or a citizen by virtue of an Australian citizenship grant.

– He or she must prove that he/she intends to live permanently in Australia and have lived in Australia for at least 12 months immediately before the filing of Application for Divorce.

– He or she must present proof that the spouses have lived separately for at least 12 months at the time of filing the divorce application and there is no chance of resuming married life.

– The spouse applying for divorce must complete the Application for Divorce and file it with the Federal Magistrates Court upon payment of appropriate fees. The application may be filed by the spouse seeking for divorce or filed jointly by both spouses.

Requirements for divorce in marriages less than 2 years

For marriages less than two years, there are certain requirements that have to be complied before the application for divorce may be granted by the Court.

Normally, the two year period will be considered from the date of marriage up to the date of filing your Application for Divorce.

As a condition, the applicant spouse will be required to attend a counseling session with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with the spouse, but if the applicant spouse failed to seek the help of a marriage counselor, he/she should seek permission from the court by filing an Affidavit attached to the Application for Divorce.

The no fault divorce in Australia

The Family Law Act 1975 adheres to the principle of  no-fault divorce. The court will not require the presentation of evidence as to which partner was at fault and why the marriage has to end. The Court will only accept the fact that there was no marital cohabitation taking place for the last 12 months with no hope for marital reconciliation.

Opposing the divorce proceeding

The spouse (respondent) may oppose the divorce proceedings filed by the applicant spouse upon reasonable grounds only. The opposing spouse will have to file a Response to Divorce and provide the grounds for the dismissal of the application and must attend the hearing in Court.

The grounds to oppose the divorce application include:

– That the application was filed prematurely or in less than 12 months counted from the date of actual separation;
– That the Court has no jurisdiction to hear the application for divorce; or
– The spouses failed to provide the Court of an agreement embodying the provisions for the care, education and support of minor children.

Find help

It’s always a good idea to consider the full ramifications of divorce, prior to separation. This family law podcast should further help.

Read our free family law guide