About divorce in Australia
In Australia section 48(1) of the Family Law Act 1975 sets out that the only ground for a divorce is the irretrievable breakdown of the marriage. No fault needs to be proved. Neither spouse is blamed.
Applying for divorce is usually a fairly straightforward process. It is possible to undertake the process without a solicitor although many people feel more comfortable for such a serious matter to be handled by a legal professional.
There can sometimes be complications and that is where the benefit of expert legal skills and knowledge comes in. We’ve included a few common questions and answers that may assist with your enquiry. Or of course please feel free to get in touch for advice specific to your situation.
Who can apply for divorce?
Anyone who is:
- an Australian citizen
- domiciled in Australia (it is your legal home)
- ordinarily resident in Australia (and have been for at least a year)
can apply for a divorce order
- they have been married for more than 2 years (or less in some circumstances – obtain legal advice if this is you); and
- they have been separated for more than 12 months (including under the same roof)
Do both spouses have to apply for a divorce together?
No. An application for a divorce can be made by one of the spouse parties acting on their own; or if you both agree, you can make a joint application
Do I have to go to court for my divorce application?
Unless there are children under the age of 18, the answer is usually no. Most applications are dealt with on the paperwork alone. You can of course attend court if you wish to be present when the court considers the application and decides whether to grant the divorce order.
What documents do I need to file for a divorce?
Usually you will need a copy of your marriage certificate to accompany the application. If the marriage took place overseas and is in a language other than English you will need a translated version and a supportive affidavit by the translator.
Are there any time limits I should be aware of?
Yes. An important limitation period starts from the date that the divorce application takes effect. You and your ex spouse have only 12 months from then in which to apply for a property adjustment order (a family law property settlement) or a maintenance order.
If you miss that deadline then all may not be lost. Sometimes it is possible to obtain the court’s permission to begin a case after the 12 months have lapsed. Stringent criteria apply. Bear in mind that permission to start a case late may not be given and it is always better to be safe than sorry. If you’re out of time or think you might be you should always get legal advice specific to your circumstances.
What about my Will?
Getting divorce may invalidate your will. For example, in Queensland section 15(1) of the Succession Act states that a divorce revokes those parts of a Will that would otherwise see property or power to act as trustee or executor going to the ex spouse. Depending upon your circumstances there may be exceptions to this rule.
It is very important to get specialist legal advice about your Will and Estate Plan when going through a divorce. At Bell Legal Group we have a dedicated Wills and Estate Planning team who can help you with this.
If you have any queries about getting divorced in Australia please get in touch.
We can assist you in applying for a divorce and advise you about how this may impact on your other legal rights and obligation. To find out how our Family Law team can help you call us now on 07 5597 3366 or complete the ‘Contact Us’ form below.
Please note that the above is general information only. It is not legal advice and should not be taken as such or relied upon.