Divorce and Separation

In Australia, you can obtain a divorce through the Courts by filing an Application for Divorce. The Application can be made by either you alone or jointly by you and your spouse together.

In order to apply for a divorce, either you or your spouse must be:

  • an Australian citizen; or
  • ordinarily resident in Australia and has been for the 12 months immediately before the application is filed in Court; or
  • domiciled in Australia; and
  • living separately for at least 12 months (which includes living separately under one roof), and there is no reasonable likelihood of resuming married life.

Australian Courts generally recognizes marriages from almost all other countries. Accordingly, you are generally able to apply for a divorce in Australia even if you were married overseas, as long as the above requirements are met.

If at the time of the application for divorce it has been less than 2 years since you were married, you and your spouse are required to attend counselling to discuss the possibility of reconciliation. If counselling is not possible, you will need to write to the Court requesting permission to file the application without a counselling certificate.

Generally, you are not required to attend the Court Hearing for your Application for Divorce if:

  • the application is made by you and your spouse jointly; or
  • you do not have any children and your spouse has not objected to the divorce; or
  • it is not an application for divorce where you and your spouse lived separately under one roof.

Obtaining a Divorce Order from the Court usually takes about 2 to 3 months and if you are planning to re-marry, you should consider filing the application as soon as possible after the 12 months separation period, in order to avoid any delays.

Separation under one roof

It is possible to obtain a divorce even if you and your spouse have been living in the same house, but not as husband and wife, during part or all of the required 12 months separation period. This situation is generally known as “separation under one roof”.

In this situation, you will need to support your divorce application with additional evidence to prove that you were indeed separated at the time you were both still living in the same place of residence or “separation under one roof”. Generally, the additional evidence is provided to the Court by way of an Affidavit which explains:

  • matters relevant to prove you and your spouse have separated, for example a change in sleeping arrangements (sleeping in different bedrooms), a change in sexual activity, change in shared activities, change in performing household duties, change in financial arrangements, etc;
  • why you and your spouse continued to live in the same house after separation and your plans regarding future living arrangements for both parties;
  • living arrangements you and your spouse made for any child of the marriage during the time you and your spouse were living in the same house;
  • whether you have informed anyone else (i.e.: any government department, family members or friends) about your separation with your spouse.

Further, the Court will ordinarily require corroboration of your claim by a third person. This third party can be one of your friends or family members who knew about your separation. This third party must file a separate Affidavit in Court to show that he or she knew about your separation and the circumstances surrounding your living arrangements.

The Court will then list your matter for a Court Hearing after receiving all of your filed documents.  You and your witness should attend the Court Hearing and may be required to give further evidence at the  Court Hearing in order to satisfy the presiding Judicial Officer of your claims.

Service of Court Documents

If you apply for a divorce on your own, you must serve the application on your spouse. Service of Court documents means delivering the document to another party to the proceedings whilst in compliance of the rules depending on the type of the document that needs to be served.

You cannot personally serve an application for divorce to your partner. An application for divorce may be served by post or personally delivered by another person. However, you should only serve the application for divorce by post if you are confident that your spouse will receive it and will likely sign an acknowledgment form. There are time limits for serving the divorce application on your spouse and failure to do so will likely result in delays.

Inevitably, there will be situations where you are unable to serve the divorce application on your spouse. If this happens, you will need to make an application to the Court for an order to dispense with the requirements of service. An application for dispensation of service can be done via an Application in a Case with a supporting Affidavit filed in Court.

When deciding an application for dispensation of service, the Court has to consider the following:

  • whether all reasonable efforts have been made by you to find and serve your spouse;
  • what other steps could be taken and the likely costs for you to take these steps; and
  • whether advertising or some other method is likely to bring the original application to the attention of your spouse.

The Court expects you to make all reasonable efforts to find your spouse prior to you seeking orders to dispense with service. Generally, this means you will need to demonstrate that you have:

  • attempted to contact your spouse with his or her last known contact details;
  • made inquiries with any relative or close friends of your spouse;
  • made inquiries with the last known employer of your spouse, any club or organization of which your spouse was a member, any bank your spouse dealt with; and
  • conducted relevant electoral search or other land searches to ascertain the current address of your spouse.

If you are going through separation or a divorce – know that you’re not alone and that help is just a phone call away. Contact us to arrange for a confidential consultation with one of our friendly Family Lawyers as soon as possible.

Need help?

If you find yourself having any legal issues and would like more information about how you should proceed, contact us now at 08 6161 0243 or submit an enquiry form below:

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