You can apply to the Court either jointly or solely to obtain a Divorce, if you satisfy the following requirements:
1. You have been separated for at least 12 months and there is no prospect of reconciliation; and
2. There is an irretrievable breakdown of the marriage.
12 MONTHS SEPARATION
In order to apply for a divorce in Australia, the Courts will require that you and your spouse have been separated and lived apart for at least 12 months and 1 day.
SEPARATION UNDER ONE ROOF
You can still be separated if you and your spouse live in the same home, however the Court will require additional Affidavit evidence to prove that there was an irretrievable breakdown of the marriage at the date of separation.
WHAT HAPPENS IF WE RECONCILE?
If, during the period of separation, you and your spouse reconciled for a period of 3 months or longer, then the separation period will restart from the date when reconciliation ceased. However, if the period of reconciliation was less than 3 months, then the separation period will start from the first separation date.
In the case that you and your spouse have been married for less than 2 years, the Court will also require a counselling certificate to be produced with your divorce application. If you are unable to obtain a certificate, you will be required to seek the Courts permission to apply for a divorce, which can be done by filing an affidavit with your application.
Applicants must show the court that there is a complete breakdown of the marital relationship and that it is unlikely that cohabitation will be resumed.
This is ordinarily demonstrated by the 12-month separation period as outlined above.
In Australia, there is a principle of no-fault divorce, which means that the Courts will not consider which spouse was at fault for the breakdown of the marriage.
ATTENDANCE AT COURT
Generally, you will only be required to attend Court if you have filed a sole application and there is a child under the age of 18 years. Further, unless your spouse has filed a Response to the Divorce, they will not be required to attend Court.
Other circumstances in which you may be required to attend Court are if the Court requests additional evidence relating to the circumstances of the marriage, such as if you were married for less than 2 years or if you were separated under the same roof.
WHAT IF I MARRIED OVERSEAS
If your marriage occurred overseas, you can still apply for divorce in Australia if either you or your spouse:
1. regard Australia as your home and are an Australian citizen or resident; or
2. are an Australia citizen by birth; or
3. are an Australia citizen by grant of an Australian citizenship; or
4. ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
SEEKING LEGAL ADVICE
It is advisable that before undertaking the divorce application process you seek legal advice. A lawyer can help you to understand the relevant rights and responsibilities that you may need to consider prior to lodging an application and the law that applies to your particular case.
Please contact our experienced and friendly Family Law Team at Affinity Lawyers today on 07 5563 8970 to discuss your query.