Sadly, every year, thousands of relationships end in separation or divorce.
Understanding the divorce requirements necessary to formally end your relationship can help you and your family achieve a resolution sooner, during what can be a difficult time.
What is the difference between divorce and separation?
Divorce is the legal ending of a marriage (it is distinct from a property settlement or parenting arrangements). To obtain a divorce, married spouses need to have been separated for 12 months with no chance of reuniting.
In Australia divorce is dealt with by the Federal Circuit and Family Court of Australia.
Separation is when you and your partner stop living together as a ‘couple’. This applies to both married and de facto couples, however only married couples require a ‘divorce.
Divorce requirements and issues to consider
Set out below are some of the requirements necessary to obtain a divorce in Australia:
Divorce requirements: Who can apply for a Divorce?
All married parties, once separated from their spouse for a period of 12 months from the date of separation, can apply for a Divorce.
Same-sex married couples are treated the same as other married couples and can apply for divorce if the marriage is recognised in Australia and meets the requirements for divorce.
CMN’s Family lawyers can advise you as to the recognition of your marriage.
Divorce requirements: 2 years of marriage to pass before filing for a divorce
In Australia you must be married for a minimum of 2 years before you can make an Application for a Divorce. You must also be separated for a period of 12 months from the date you separated from your spouse, to enable you to apply for a Divorce.
Divorce requirements: 12 months separation
To demonstrate your relationship has ‘irretrievably broken down’ you must be separated from your spouse for a period of at least 12 months with no possibility of reconciliation.
In most cases couples physically separate when one partner moves out, but sometimes former couples can still be living together in the home and leading separate lives, this is called ‘separation under the one roof.’
Be aware if you are considering separation under one roof, proving separation can be tricky to agencies (e.g. Centrelink) as they will review if you are still sharing meals, a bedroom and/or bank accounts.
Divorce requirements: Australian citizen, or resident for at least 12 months
As well as being separated for 12 months other divorce requirements include:
- being an Australian citizen, or
- living in Australia and regard Australia as your permanent home, or
- living in Australia for at least 12 months before applying for a divorce.
CMN’s Family lawyers can advise you on the best way to evidence your citizenship or residency status.
Divorce requirements: Application to the Federal Circuit and Family Court of Australia
You must apply to the Federal Circuit and Family Court of Australia for a divorce.
You can apply together as a ‘joint application’, or one spouse may apply being a ‘sole application’).
Whether you will need to attend Court will depend upon whether the application is joint or sole, and whether you have children under the age of 18 years’ old.
CMN’s Family lawyers can advise you on sole and joint applications for divorce.
Divorce requirements: Copy of your marriage certificate
A certified copy of your marriage certificate must be filed with your Application for Divorce.
Your marriage certificate must be written in English; or if your marriage certificate is in another language, a certified translation must be obtained.
CMN’s Family lawyers can assist with obtaining a translation of your marriage certificate.
Divorce requirements: If you have been married for less than 2 years
If you have been separated for 12 months, but you have not yet been married for a period of 2 years, there is an extra requirement before you apply for a divorce.
You must either:
- attend counselling with a family counsellor to discuss the possibility of reconciliation with your spouse; or
- if you do not attend counselling, you must seek the permission of the court to apply for a divorce.
Divorce requirements: Counselling
You and your spouse must attend a counsellor to discuss the possibility of reconciliation before you can apply for a Divorce.
If your spouse does not wish to attend Counselling CMN’s Family Law team can assist you with appropriate next steps. We can also assist with finding a family counsellor and provide a ‘Counselling Certificate’ as part of your Divorce Application (completed by the counsellor stating the possibility of reconciliation was discussed with you and/or your spouse).
Divorce requirements: No counselling
If counselling is not possible, you will require the Court’s permission to apply for a divorce.
An affidavit must be filed with your divorce application seeking this permission.
CMN’s Family lawyers can prepare an affidavit for you as part of your Divorce Application.
Divorce requirement: Attending the Divorce hearing
Once your application for divorce has progressed you may need to attend a divorce hearing.
You should always consult a Family Lawyer when obtaining a divorce to ensure your divorce is granted on the first hearing date, and not adjourned to another date. The Court will usually only grant one adjournment of your Divorce hearing to ensure compliance with requirements and thereafter, may dismiss the Divorce Application.
The Federal Circuit and Family Court of Australia requires that you attend the divorce hearing in two circumstances, if you have:
- applied for a divorce alone (sole application); and/or
- children of your marriage who are under 18 years of age.
If there are some complexities in your family situation, for example, if your spouse resides overseas, or if you cannot locate your spouse to serve them with the Divorce Application, we recommend you have an experienced Family Lawyer prepare your application and attend the divorce hearing with you.
During the COVID-19 pandemic, the Court has moved to hearings via telephone or online means (e.g. Microsoft Teams). Remote hearings may continue after the Court moves to physical attendance at the Court, to enable persons who live remotely or cannot attend at the Court for personal or work reasons.
CMN’s Family Law team can help you prepare for and attend any in person or remote hearing dates.
What else should I know before applying for a divorce?
Some other factors to be aware of if you are considering applying for a divorce include:
How long does it take for a divorce to be granted?
Once granted a Divorce Order takes effect one month and one day after the order is made by the Court.
If you wish to shorten the period of time for a Divorce Order to take effect CMN’s Family Law team can assist you with the appropriate steps.
Sometimes the Court will require further information before a Divorce application can progress.
Divorce only determines that your marriage is at an end
It is important to understand that a divorce does not finalise parenting arrangements for your children, nor does it settle financial and property matters. These matters can be settled before or after a Divorce is granted.
Property and financial matters must be either resolved or an application filed in the Court before the expiration of 12 months of the date of the Divorce Order.
Impact of divorce on other personal legal affairs
A divorce also affects any Will or testamentary document (e.g. a family trust) that may have existed before your divorce. It is important that you obtain legal advice in this instance to protect your rights in these other areas.
How Craddock Murray Neumann can help with your divorce requirements
If you wish to seek a divorce and are unsure whether you can apply, Craddock Murray Neumann’s Family Law team can help. The team includes an Accredited Family Law Specialist who can support you in both the legal aspects as well as the practical and process side of Family Law including obtaining a divorce.
Our Craddock Murray Neumann Family support for divorce includes:
- advice on your eligibility and meeting of divorce requirements
- practical support including drafting your divorce application
- corresponding with your spouse’s solicitors
- putting you in touch with our wider support network including counsellors, barristers and accountants
- preparing affidavits confirming counselling sessions,
- translations of marriage certificates into English,
- advising on and drafting parenting orders and arrangements and property and financial orders or settlements
- revising and updating wills and trusts post-divorce.
For a confidential discussion about your separation or divorce application or for any other Family or Relationship Law matter, please contact us.