Divorce is the official ending of a marriage. When a divorce order is made final you can remarry.
The only requirement for a divorce is the ‘irretrievable breakdown’ of the marriage. This is proved by the husband and wife having been separated for 12 months with no likelihood of getting back together.
Your partner does not have to agree to the separation, however they need to know that you think the marriage is over.
The court does not consider whose fault it was that the marriage broke down.
You do not have to get a divorce when you separate unless you want to remarry, but staying married affects your rights and obligations in relation to financial matters, Wills and estates. Get legal advice.
How to apply
To apply for a divorce you or your spouse must have been separated for 12 months and fit one of the following:
- be an Australian citizen
- live in Australia and regard Australia as your permanent home
- ordinarily live in Australia and have done so for at least 12 months before the divorce application.
You can apply for a divorce together (joint application) or on your own (sole application). If you are making a joint application you do not need to go to court. If you are making a sole application and your children are under 18 and were part of the family prior to separation, you must go to court unless circumstances stop you from attending.
If you apply on your own, you must arrange for the other person to be ‘served’ with the divorce application. Serving or ‘service’ is giving your ex-partner the divorce paperwork so they know about the court proceedings.
You cannot personally serve your former partner but you can serve them by mail. The family law courts have special rules about the service of documents and forms to prove that the other person was served.
You should allow several months from the time you file for divorce to the actual date of divorce. If there are problems with your application it may take longer.
Your divorce will not become final until one month after the hearing, at which time the court will issue a divorce certificate.
What if we get back together for a short time?
You must have been separated for at least 12 months before you can apply for a divorce.
You can get back together once for up to three months without re-starting the 12-month separation period. For example, if you are separated for four months, get back together for almost three months and then separate again for eight months, this will be considered a total of 12 months’ separation.
However, if you were back together for four months only the most recent eight months would count as separation.
Living separately ‘under the one roof’
It is possible to get a divorce if you live in the same house after separation but lead separate lives.
In deciding whether you separated ‘under the one roof’ the court will consider whether:
- you sleep together
- you have sex or engage in sexual activity
- you share meals and domestic duties (in a different way to when you were married)
- you share money and bank accounts
- your friends and family think of you as separated.
If this applies to you and you want a divorce, you will need to prepare supporting affidavits. Get legal advice.
If you have been married for less than two years, you and your spouse must go to a counselling session with a family counsellor and file a certificate confirming this with the court.
Where there are special circumstances you may not be required to attend counselling. For example, if there is family violence or if you cannot locate your husband or wife.
If you participate in counselling, but your spouse refuses, then you can still get a divorce. If neither of you attend counselling, then you will need to seek permission from the court to apply for a divorce. Get legal advice.
You cannot remarry until your divorce order becomes final.
Be careful not to set your wedding date too close to the expected date of your divorce order becoming final. If there is a delay, you will not be able to go ahead with your wedding until the problem is sorted out and the divorce is granted.
Property settlement and children’s arrangements
A divorce does not sort out issues relating to children or property.
Division of property must be done within 12 months of the date of the divorce order.
If you cannot resolve your property issues and need a court to decide, you must file a separate application to your divorce within 12 months of the date of the divorce. Otherwise, you will need to ask the court for permission to apply. See Dividing your property.
If you can’t agree on arrangements for children, you can try to sort out your issues using family dispute resolution. If you can not reach an agreement then you may need to go to court. See Parenting arrangements and child contact.
Find out how you can get help with separation, divorce and marriage annulment.