If you have separated from your spouse and wish to apply for a divorce, you would need to consider whether you are eligible to file for a divorce in Australia and the steps required to commence and complete divorce proceedings.
What is divorce in Australia?
When the term “Divorce” is used in family law matters in Australia, it refers to the legal process of terminating the marriage. Separation alone does not terminate the marriage. In order for a marriage to be officially terminated, the court must issue a “Divorce Order”.
Besides divorce, a separated married couple would also have to address how their property and finances are to be divided and if there are children, how the care of their children is to be resolved.
How does divorce work in Perth, Western Australia?
It does not matter whether you wish to apply for a divorce in Perth or in any other Australian state or territory. Family law applies similarly throughout Australia. State law does not apply to divorces. Instead, federal legislation known as the Family Law Act 1975 applies. Hence, the law on divorce is the same throughout Australia.
However, you need to ensure the court you file your divorce application has jurisdiction to hear your matter.
What are the grounds for divorce in Australia?
There is only one ground for divorce in Australia, namely that the marriage has “broken down irretrievably”. This means that the relationship has broken down to the extent that it cannot be repaired and there is no possibility of a reconciliation. Divorce in Australia is granted on a “no fault” basis. To show that the marriage has broken down irretrievably, the only requirement is that the parties have lived separately for a continuous period of 12 months. The reason leading to the separation is not a relevant consideration in a divorce application.
Many married couples upon separation live in separate premises. However, for children, financial or other reasons, many married couples continue to reside in the same home after separation. If this occurs, you are still eligible to apply for divorce as you long as you can show that you and your spouse have led and are leading separate lives while living under the same roof.
The law permits the requirement of 12 months continuous separation to be interrupted up to a maximum of 3 months if parties had returned to live together to attempt reconciliation and which attempt was not successful and parties eventually separated on a permanent basis.
Are there any other criteria to apply for a divorce in Australia
Whether you wish to self-represent or appoint a lawyer in the divorce application, the first step is to determine whether you meet the criteria to apply and obtain a divorce order under the Family Law Act 1975. Besides showing that you have lived separately from your spouse for a continuous period of least 12 months, you would need to meet the following criteria:-
- You or your spouse must have a connection to Australia in that you or your spouse: –
– are Australian Citizens; or
– consider Australia your home and intend to reside in Australia indefinitely; or
– have resided in Australia for at least 12 months prior to the date of the filing of the divorce application.
It is important to note that the above criteria will be met as long one of the separating spouses is able to show the above connection to Australia. - You have been married to your spouse for at least 2 years. If you do not meet this time requirement, you would need to file a counselling certificate confirming that you and your spouse attended counselling to discuss the possibility of reconciliation. Alternatively, you will need to obtain a court order giving you permission to proceed with the divorce application notwithstanding that you and your spouse did not attend counselling. To obtain this court order, you will need to file an affidavit explaining the special circumstances preventing you and/or your spouse from attending counselling.
What documents do I need to produce when applying for divorce?
To make an application for divorce, the following documents must be produced to the court:-
- A copy of the marriage certificate.
- If required to show connection to Australia:-
– a copy of your or spouse’s Australian passport or citizenship certificate to prove Australian citizenship; or
– a valid Australian visa to show that you or your spouse have the right to reside in Australia indefinitely; or
– documentary evidence that you or your spouse have resided in Australia for at least 12 months before filing the divorce application. - Any existing court orders, binding agreements made with your spouse, parenting plans or undertakings in any court in relation to the marriage, divorce, property and finances or children of the relationship.
If are unable to locate a copy of the marriage certificate, you will have to apply to the Registry of Births, Deaths and Marriages in the state or territory where your marriage was registered for an extract. If you were married overseas, you will need to apply to the relevant registry or government department of the country where you were married.
If any of these documents are not in the English language, they must be translated into the English language by a qualified translator for submission to the court.
How do I start applying to the court for divorce?
Divorce applications are filed online through the court portal. If you are acting for yourself, you must register with the court portal.
Although family law applies uniformly throughout Australia, the proper court to register your account and for filing the divorce application will depend on your location:-
- If you are in Western Australia or if you are currently overseas and have a connection to Western Australia, the application will be filed in the Family Court of Western Australia. You must register an account with the eCourts Portal of Western Australia. (WA is unique in that it is the only state with its own family court.)
- If you are in another state or territory, family law matters are dealt with by the Federal Circuit and Family Court of Australia. You must therefore register an account with the Commonwealth Courts Portal and file the divorce application with this portal.
Once you have registered yourself with the relevant court portal, you can commence filing the divorce application.
Contact us
For all enquiries on divorce applications or any other family law matter, please get in touch with the family lawyers at Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiries@robertsonhayles.com or via our contact form on our website, and we will be happy to assist you with your family law matter.
Note
The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.