You are able to apply for a divorce 12 months after you have separated.

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You are able to apply for a divorce 12 months after you have separated.

The law considers that a married couple have separated when one partner has communicated to the other that the relationship has ended or when both partners communicate this at the same time.

Often separation involves one partner leaving the family home, but sometimes partners can be separated and still be living under the one roof.

Divorce is the formal end of a marriage.  It is separate to dealing with the division of property or working out arrangements for children. Divorce can occur before or after a property settlement.

Criteria

To apply for a divorce, you must be separated for at least 12 months .  Once this time has passed you can lodge an application with the Court.

You can apply for a divorce in Australia if either you or your spouse can answer yes to one of the following:

  • Are an Australia citizen by birth, descent or grant of Australian citizenship; or
  • Regard Australia as home and intend to live in Australia indefinitely; or
  • Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Children

If you have children, the Court needs to be sure that proper arrangements for their care are worked out before a divorce is granted.

Court Hearings

Depending on your circumstances, you may be required to attend court for the divorce hearing. If this is necessary, we can help you with this process and appear in court for you.

How can we help you?

We regularly help clients in relation to their divorce from providing formal notification confirming the irretrievable breakdown in the relationship through to applying to the Court for divorce.

Contact Us

For more information about divorce applications, call us on 08 8523 8400 or email us at legal@rudalls.com.au.

Questions to Consider

Can I oppose a divorce application?

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:
  • there has not been 12 months separation as alleged in the application; or
  • the Court does not have jurisdiction.
If you do not want the divorce granted a Response to Divorce needs to be lodged and you will be required to appear in person on the hearing date. You will need to set out the basis upon which you seek the dismissal in the Response to Divorce.

I have applied for a divorce, can I set a wedding date for my new marriage?

You should not plan to remarry until the divorce order is finalised. In the majority of cases this occurs one month and one day after the divorce hearing however you should not assume that the divorce will be granted at the first court hearing. If you intend to remarry you must give the marriage celebrant a Notice of Intended Marriage at least one month before the wedding date and comply with other requirements of the Marriage Act 1961.

What does “separation under the one roof” mean?

It is possible for you and your spouse to be separated but to continue living in the same house during the 12 months before applying for divorce - this is commonly referred to as "separation under the one roof". If this applies to your circumstances you will need to prove to the Court that you were separated during this period of time.

I want to divorce but I have been married less than two years, what do I need to do?

If you have been married less than two years and want to apply for divorce, you must either attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse, or seek permission of the Court to apply for a divorce. The two year period is calculated from the date of the marriage to the date of applying for a divorce. You and your spouse must have been separated for at least 12 months before applying for a divorce.

I married overseas, can I get a divorce in Australia?

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
  • regard Australia as your home and intend to live indefinitely in Australia;
  • are an Australian citizen by birth or descent;
  • are an Australian citizen by grant of Australian citizenship;
  • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

What do I need to do if my marriage certificate is not in English?

You will need to file with the Court:
  • an English translation of your marriage certificate; and
  • an Affidavit from the translator.

What do I do if I can not attend the divorce hearing?

If it is difficult for you to attend in person, you may ask the Court to appear by telephone. A request in writing must be lodged if you are unable to attend.

How do I discontinue my application for divorce?

If you have started the process but have changed your mind, a notice of discontinuance can be filed. However, filing this notice does not prevent the other party from continuing to seek the orders that they have sought. If your court hearing is not vacated (i.e. cancelled) ever after you have lodged the notice, it is in your best interest to attend to ensure that no court orders are made in your absence.

How do I obtain proof of divorce?

Obtaining proof of divorce depends on the circumstances that relate to your case:
  • You may be able to obtain proof of divorce at no cost from the Commonwealth Courts Portal if you were a party to the proceedings and the divorce was finalised after 13 October 2010.
  • If you are unable to obtain the proof of divorce via this method then an application can be lodged and the proof of divorce will be posted to you.
  • If the divorce was granted in Western Australia then an application needs to be made to the Family Court of Western Australia.
  • If the divorce was granted outside of Australia then contact needs to be made to the relevant court or authority in the country where the divorce was granted.
  • If the divorce was granted prior to 1976 contact needs to be made to the Supreme Court in the state or territory where the divorce was granted.