Divorce FAQ’s

How long do I need to be separated before I can make application for a divorce?

Australia has a no-fault divorce system. What this means is that the behaviour of both parties is not relevant, the only test is that the relationship be irretrievably broken down.

One of the indicators of this is that the parties to the marriage have been separated for at least 12 months.

Do I need to give reasons why I want a divorce?

Since 1975 with the introduction of the Family Law Act, Australia has adopted a no-fault divorce system. This means, that unlike in the past, a Court does not need to be satisfied that any of the parties are at fault or have done anything wrong or caused the parties to separate.

This also means that you are not required to give any particular reason for wanting a divorce. The only ground that the Court needs to be satisfied of is that the relationship has irretrievably broken down.

Do I need to obtain my partner’s consent?

No. You can make an application for divorce on your own or jointly, but consent or agreement is not required. There are also very limited grounds upon which someone can object to or successfully resist a divorce.

After separation, we tried to reconcile, but it only worked for a short time. How does this affect the 12 months separation requirement?

You are given one opportunity to reconcile for a period of up to 3 months without invalidating the prior period of separation. If you separate again within 3 months of the attempted reconciliation, the separation period up to the attempted reconciliation as well as after the failed reconciliation will count towards the 12 months total required for the filing of an application for divorce.

However, should you attempt to a repeat reconciliation of more than 3 months and then separate again, the 12 months period of separation must re-start from the end of the attempted reconciliation.

We are separated, but I can’t afford to move out. Does this counter separation of the 12 months requirement?

There is no requirement that you live in different residences during the period of separation. However, if you live separately under the same roof and wish to use this time towards your 12 months separation period, you and your spouse and a third party (such as a friend) will each need to file an affidavit with the Court verifying that you were in fact separated during that period of time.

The main concern of the Court is that the separation was genuine and that whilst you may be living under the same roof, you are not living together as husband and wife.

We have been married for less than two years. Can we get divorced?

Assuming that you meet the other criteria such as being separated for a period of 12 months, you may apply for divorce. However, a counselling certificate will need to be filed with the divorce application.

We weren’t married in Australia – can we get a divorce here?

Even if you are married overseas, you may seek a divorce in Australia if you or your spouse are an Australian citizen, regard Australia as ‘home’ and/or have lived in Australia for at least 12 months prior to applying for a divorce.

If you want to learn more about Divorce and how to go about it then you can contact Georgia Johnson on 4124 7100 or by email on gjohnson@gaylerlaw.com.au