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Separation and Divorce in Australia

Separation

Before a couple can get divorced in Australia, it must first be proven that the relationship has ended and the two parties have become separated.

Before a couple can be recognised as being separated two things must happen:

  1. At least one of the parties must have clearly decided they want to end the relationship and they must have communicated that to their partner
  2. At least one of the parties acts on the intention to end the relationship by moving out or taking other steps so that it would be clear to family, friends and other observers that the relationship is over.

De Facto Partners

Under Queensland law a de facto couple is defined as two non-married, non-related people of either sex who are living together in a relationship on a genuine domestic basis. No formal documents must be signed in order for couples to legally separate, but there may be legal issues involved when they do. The Family Court and Federal Magistrates Court can deal with issues related to the children of de facto relationships. In the Australian Capital Territory and Northern Territory only, the Family Court (but not the Federal Magistrates Court ) can deal with property disputes between partners in de facto relationships at the same time as hearing disputes about children. Otherwise, the Courts cannot deal with property disputes between partners in de facto relationships or with maintenance applications for de facto partners. These disputes are dealt with by state and territory courts under relevant state and territory legislation.

Divorce

Divorces are usually applied for in the Federal Magistrates Court. To apply you need to file an Application for Divorce with the Court and pay the application fee or be eligible for a fee exemption or waiver.

You can apply for a divorce by yourself (sole application) or together with your spouse (joint application).

If you apply for divorce on your own, you are the applicant and your spouse is the respondent. For a joint application, the husband and wife are joint applicants. You can only apply for divorce in Australia after you have been separated for at least 12 months. To apply for a divorce you will need to show that:

  • you and your former partner (spouse) are married
  • your marriage has broken down irretrievably (permanently) and you do not intend to resume married life with your spouse
  • you and your spouse have been separated for at least 12 months and one day, and
  • you or your spouse are Australian residents or citizens or regard Australia as your permanent home.

The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for a period of 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably. If there are children aged under 18, the Court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

The granting of a divorce does not decide issues of maintenance, child support, property or parenting arrangements for your children. If you want to apply for orders about these issues, you should do so on a general application form. If you need to apply for maintenance for yourself or a division of property, you must apply to the Court within 12 months of your divorce becoming final. After that time you will need the Court’s permission to apply.

More Information on Divorce in Australia

You can read more about the divorce process at the Family Law Courts website.