Applying for Divorce

Divorce is the legal end of a marriage. Until a divorce order has been made final, parties involved will be considered as being married. The only requirement to be satisfied in divorce cases is the ‘irretrievable breakdown’ of the marriage. The ‘irretrievable breakdown’ is demonstrated by parties being separated for a minimum of 12 months with no reasonable likelihood of getting back together.

Divorce – can I apply?

Many people are concerned that they cannot apply for a divorce in Australia for various reasons. However, applying for divorce may be relatively straightforward. The first major step is to be able to demonstrate to a Court that you have been separated from the other party for at least 12 months. Contrary to popular belief however, you do not necessarily need to move out of the shared home and live independently. Whilst it might be easier to do so, the family law system understands that in some cases, parties might still have to share the same home and the same living arrangements. This might be because neither party can afford to move out and live independently or for the sake of the children. Nevertheless, you will still have to demonstrate your intention to separate by ceasing to engage in the typical activities of married couples. What is important is for you to clearly communicate your intention to separate to the other party as well as others.

Grounds for divorce

As above, the only ground necessary in applying for divorce is that the marriage has broken down irretrievably. Whose fault the divorce might have been is of no concern to the Court. It also does not matter if the other party does not want a divorce. You can apply for a divorce as a sole applicant.

There may be additional requirements under certain circumstances. One such circumstance is if the marriage was short. If the marriage has existed for less than two years, divorce can only be applied for if you attend a counselling session together. You must then obtain a certificate from the counsellor you attended confirming your attendance and that you considered getting back with the other party. If you cannot attend counselling, you might be able to ask the Court for permission not to have to attend.

The other circumstance is if there are any children of the marriage. ‘Children of the marriage’ refers to any child under the age of 18 living with the parties at the time of separation. In such cases, you must be able to demonstrate to the Court that you have made proper arrangements for the care, welfare and development of the children.

Otherwise, you must also:

• be an Australian Citizen (whether by birth, descent or grant);
• consider Australia your home and intend to live in Australia indefinitely; or
• ordinarily reside in Australia and have been doing so 12 months prior to the date of application

If you would like to discuss any of the above further, we at Straits Lawyers can help. Simply email us at info@straitslawyers.com or call at 08 8410 9069.

Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.