What is a divorce?

In Australia marriage is defined as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. When that union has broken down with no reasonable prospect of a reconciliation the law allows for a mechanism to dissolve the union. This is known as a divorce. A divorce changes your legal status. 

What are the grounds for divorce?

In Australia today there is only one ground for divorce, that is that the marriage has irretrievably broken down evidenced by 12 months separation. There is no longer any requirement to prove that either person was at fault. 

How long do I have to be separated before I can file for divorce?

In order to establish that your marriage has broken down irretrievably, you must have been separated for a continuous period of 12 months immediately prior to filing the application for divorce. 

Separation is established where:

  1. There is an intention by one or both of you to sever the marital relationship;

  2. You have acted as though the relationship has ended; and

  3. Where only one person considers the relationship to be at an end, that person has communicated this intention to the other.

You do not need to physically live apart to prove that you consider your marriage to be at an end, however, the court must be satisfied that the couple has separated. If you are separated but are living under the same roof you will be required to provide additional information to the court to prove the separation.   

Can we try living together again after separation?

To encourage reconciliation, the law allows you to live with your spouse again for up to 3 months without the need to re-set the continuous 12 month separation period. However, you must have lived separately for a total period of at least 12 months. 

What if my marriage was short? 

If the marriage has lasted for less than two years, the law requires you to have attempted reconciliation with the assistance of a counsellor. If you have not attended counselling you must seek permission from the court to apply for a divorce.  

We have decided to get a divorce, what is the process?

You will then need to complete an Application for Divorce which will be filed with the Federal Circuit Court. The application can be made jointly or solely and a filing fee must be paid. Your lawyer can prepare the application on your behalf, or you can lodge online.

Upon filing of the application a hearing date will be set. The application must be served on the other party (unless it is a joint application). 

If your application is successful, the court will grant a divorce order. The divorce order will automatically take effect one month after the order is granted. 

Do I need to attend the hearing?

If you have made a joint application or there are no children of the marriage under the age of 18, you will not need to attend the hearing unless you would like to do so. If you have made a sole application and there are children of the marriage you must attend. 

What about our children, property and assets?

A divorce order has the effect of ending a marriage only. It will not make arrangements for the parenting of children or the division of your property. Property settlement matters should generally be finalised within 12 months of the divorce order being granted. To deal with these issues we recommend that you speak to your lawyer as separate applications will need to be made. 

Harwood Andrews family lawyers understand no two marriages are the same, and our expert Family Law team will be able to help you with the complexities that are unique to your situation. 

If you have any questions, please contact:

Adam Wightman
Senior Associate
T   03 5225 5250
E   awightman@harwoodandrews.com.au

Pheobe Ryan
T   03 5329 6928
E   pryan@harwoodandrews.com.au