Before you apply for a divorce in Australia you or your spouse must :
- regard Australia as your home and intend to live in Australia indefinitely, or
- are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.[1]
1. How long do we have to be separated?
Before you can apply to the Federal Circuit Court for a divorce, you need to be separated for a year. For example, if you separated on 3 April 2015, you cannot make application until 4 April 2016.
2. How do I know we are separated?
It must be clear that at least one of you has decided the marriage is over and has communicated this to the other party. This is especially important if you separate under the one roof.
3. We can be separated under the one roof?
Yes. You may need to give the Court further information to establish you were in fact separated. For example did your family and friends know you were separated? How did you communicate to your ex that the marriage was over? You will need to file an Affidavit to support your contention that you were separated under the one roof. You may also need to file an Affidavit by a friend or family member who was aware you had separated.
4. What if we get back together after separation but then it does not work out?
The total amount of time of separation must total one year. If you reconcile for longer than three months than the time starts again. For example, you separate on 10 October 2014 and reconcile on 3 January 2015, but separate again on 31 January 2015. You cannot file an application for divorce until 9 November 2015. If however you did not separate the second time until 15 May 2015, then you would have to be separated for a full year from the second time you separated, that is, you could not apply for a divorce until 15 May 2016.
5. Do I need a copy of the marriage certificate?
Yes, if you cannot locate it you need to apply to the state or territory registry (of Births, Deaths & Marriages) for a copy.
6. What if I was married overseas?
If you were married overseas you may still be entitled to apply for a divorce in Australia. In order to apply for a divorce one of the parties must:
Regard Australia as your home and intend to live indefinitely in Australia OR
Be an Australian citizen by birth or descent OR
Have been granted Australian citizenship OR
Ordinarily live in Australia and have lived here for at least the last 12 months.
7. But I do not want a divorce, what can I do?
The Court will grant a divorce if it is satisfied your marriage has broken down irretrievably and there is no reasonable likelihood of you resuming married life. If these two grounds are established and the period of separation – 12 months – has been met, then, even if you do not want to get a divorce, the other party can apply for a divorce. If you have been married less than two years when the application for divorce is made, you may be required to attend counselling to explore the possibility of reconciliation.
8. What about the kids?
If there are children of the marriage under 18, the Court needs to be satisfied there are appropriate arrangements in place for those children before a divorce will be granted. There are questions included in the Application to give the Court information about the children. (You can apply for orders about children – “parenting orders”- almost immediately after separation if the need exists. You do not have to wait until you are divorced.) If there are already proceedings before the Court then usually the divorce order will be granted even if those proceedings (the parenting proceedings) have not finished.
9. What about the house (investments, superannuation, etc)
You do not have to wait until you are divorced to sort out your property, indeed you can apply for “property orders” as soon as you separate.
10. When can I get married again?
Once you file your Application for Divorce (and any supporting documents), you will need to serve your ex partner. You cannot serve the Application in person but may serve it by post. You can get a process server to serve the Application for you. You will be given a court date 4 to 6 weeks after the date you file your application. If all the correct information has been given to the Court then the application will be approved and a Divorce order will become final one month and one day after the court date. For example, you may file your application on 4 February 2015 and be given a court date on 27 March 2015. On 27 March 2015 your application is approved and your divorce becomes final on 28 April 2015. You cannot get married before this last date. In some circumstances you may apply to the Court to shorten the time, however should not rely on the Court approving a shortening of the time.
11. Does the Court charge a fee?
The current fee is $940*. If you are in receipt of a commonwealth income support payment you may be entitled to a reduction in this fee.
12. I would like more information, where can I go?
Information is available on-line at the Federal Circuit Court.
For more information or to make an appointment with a Family Law Solicitor in either our Canberra or Queanbeyan office contact:
Accredited Specialist Carlos Turini at: cturini@elringtons.com.au or
Phone the Family Law Team on +61 2 6206 1300
* Court fees are subject to change – Court Fees (Family Law)
