The Basics of Divorce Law in Australia

Divorce is a challenging and emotional process. Understanding the legal steps involved can help you to get through this difficult time with more certainty.

This article addresses some of the common questions couples have about the divorce process in Australia, helping you to understand your legal rights and responsibilities.

TLDR – Key Points and Takeaways

Eligibility for Divorce – You must be separated from your spouse for at least 12 months before applying for a divorce in Australia.
Counselling Requirement – Couples married for less than two years must attend a separation counselling session before applying for a divorce.
No-Fault Divorce – Australia follows a ‘no fault’ divorce policy, meaning no blame is assigned for the relationship breakdown.
Sole Applicant Option – If your spouse doesn’t agree to the divorce, you can still apply as a sole applicant, and the court can grant the divorce if there is sufficient proof of irretrievable breakdown.
Separation Definition – Separation means the relationship as husband and wife has broken down, and this can include living separately under the same roof.
Separate Processes – Divorce, property settlements, parenting arrangements, and spousal maintenance are separate legal processes. Property settlement applications must be made within 12 months of the Divorce Order.
Seek Legal Advice – It’s advisable to seek guidance from a specialist family law firm so you can engage a family lawyer who can help you to understand the complexities of divorce and provide legal advice.

Legal Grounds for Divorce in Australia

Australia follows a ‘no fault’ divorce policy. The only requirement is proof that the marriage has irretrievably broken down, usually demonstrated by the 12-month separation period.

Applications can be made jointly or by a sole applicant if only one spouse wants the divorce.

For example, Emily and James decided to divorce after realising they had grown apart. They successfully applied for a divorce without needing to prove fault or place blame.

What Does Separation Mean?

Separation means that the marriage relationship has broken down, and the elements of a relationship as husband and wife no longer exist. This separation must last at least 12 months before applying for a divorce.

When Can I Apply for a Divorce?

In Australia, you must be separated from your spouse for at least 12 months before you can apply for a divorce.

This separation period proves that the marriage has irretrievably broken down. If you attempt reconciliation for three months or more and it fails, the 12-month separation period must start over.

For example, Jane and John have been living apart for 12 months or more after deciding to separate so they can now apply for a divorce.

What If I Was Married for Less Than Two Years?

For couples married for less than two years, attending a separation counselling session is required before applying for a divorce. After completing counselling and the 12-month separation, you can submit your divorce application along with the counselling certificate to the Family Court.

For example, Sarah and Tom were married for just over a year. They attended a counselling session and received a certificate, which they attached to their divorce application.

What If My Spouse Doesn’t Want a Divorce?

If your spouse objects to the divorce, you can still apply as the sole applicant. Both parties will attend a court hearing, where the court will consider your spouse’s objections. If you provide sufficient proof of irretrievable breakdown, the court can grant the divorce despite objections.

For example, Mike wants a divorce, but his wife, Lisa, does not agree. Mike follows the other requirements for divorce and then applies as a sole applicant. The court grants the divorce based on the evidence of their separation.

Can We Be Separated Under One Roof?

Yes, you can be separated while living under the same roof. You must prove that you are living separately, such as by living in separate rooms, cooking separate meals, and maintaining separate finances. Third-party evidence from friends or family can support your claim.

For example, Anna and Mark continue living in the same house due to financial reasons but sleep in separate rooms, cook their own meals, and no longer socialize as a couple. They are considered separated under the same roof.

Do I have to do the Property Settlement first?

Property settlements, parenting arrangements, and spousal maintenance are separate from the divorce process.

While they don’t need to be settled before the divorce, you must apply for property settlement and/or spousal maintenance within 12 months of the Divorce Order.

For example, after their divorce, Laura and Steve needed to settle their property division and child custody separately. They filed separate applications for these issues in court.

Common Concerns and Misconceptions

My spouse won’t agree to the divorce – You can still apply as a sole applicant.
We’re separated but live together – This is acceptable if you can prove separation under one roof.