Your Basic Guide To Divorce And De-Facto Separation In Australia

The process of obtaining a divorce can vary depending on your unique circumstances. Our general information about what you should expect if you are seeking to obtain a divorce should merely act as a guide to help you understand the process involved. To receive advice on your situation, we recommend contacting a lawyer to discuss the best possible way to move forward.

What Does It Mean To Get A Divorce In Australia?

In Australia, divorce is simply defined as the termination of a marriage. Unless you intend to remarry, there is no legal requirement to get a divorce, nor is there a time limit on when you can apply for a divorce so long as you have been separated from your spouse for at least 12 months. Divorce under Australian Law carries a “no-fault” principle, meaning that the Court does not consider why the marriage ended when granting a divorce, only that the marriage broke down irretrievably and there is no reasonable likelihood of reconciliation.

The granting of a divorce does not determine issues relating to financial support, property settlements or arrangements for children. Rather, these issues need to be settled separately from the divorce application. It should be noted that a Court will not grant a divorce unless is it satisfied that there are appropriate arrangements in place for children of the marriage that are under the age of 18.

Who Can Get Divorced In Australia?

To be eligible to obtain a divorce in Australia, you and your partner need to have been separated for at least 12 continuous months. If in that time you had a failed reconciliation that lasted for a period of more than 3 months, the required separation period of 12 months resets.

If you have been married for less than 2 years at the time of making your application for divorce, you will need to attend counselling in order to obtain the requisite counselling certificate. This certificate must be filed with the application for divorce.

If you and your former spouse have separated, but continued to live in the same residence during part or all of the required 12 month separation period prior to your divorce application, then you need to provide extra information to the Court. This is done by way of a detailed affidavit from a closely related third party who can confirm that you and your former spouse were indeed separated under the one roof.

If you were married overseas you are able to apply for a divorce in Australia if you or your spouse are an Australian citizen or resident, or ordinarily live in Australia and have done so for at least the 12 months immediately prior to submitting your application for divorce. 

Can My Marriage Be Nullified Instead?

A declaration of nullity – commonly known as an annulment – determines that no legal marriage occurred between two parties, regardless of a marriage ceremony that may have taken place. Declaring a marriage invalid is rare and will only occur if one or both of the parties were already married at the time, were underage and didn’t have the required approval or were forced into the marriage under duress. Incompatibility situations are not grounds to have a marriage nullified.

What Happens When You Get A Divorce?

If a marriage has irretrievably broken down and you have been separated for 12 months or longer, then an application to the Court can be made for divorce. The application can be made by one party or as a joint application by both parties. You will also need to submit your marriage certificate and any other required documents, such as other orders or agreements concerning arrangements regarding children or property.

Your application will be considered by the Court and if it is found to be satisfactory, your divorce will be granted. One month and one day after your divorce is granted it will be legally in effect and you will be legally divorced and able to remarry if you so choose.

From this date you have 12 months to apply to the Court to determine any property and parenting arrangements if you are or have been unable to reach private agreement with your former partner.

Getting Divorced With Children Under The Age Of 18

If you and your former partner have children under the age of 18 the Court will require you and your former spouse to have made adequate arrangements for the child(ren) before your divorce will be granted. Unless the application for divorce is made jointly, the Court will also require you or your legal representative to appear before the Court to present the application being sought and answer any queries the Court may have in relation to parenting arrangements.

Both parents may agree on a parenting plan either in writing or by private arrangement. These plans outline the living arrangements of the children and in some cases, document child support or maintenance to paid by one party. These agreements are informal and not legally binding.

If you and your ex-spouse are unable to agree on parenting arrangements, you may need to apply to the Court to obtain parenting orders. Parenting orders can stipulate:

• Who the child lives with;
• How much time is spent with each parent;
• What responsibilities each parent has;
• Financial support for the child; and
• Any other aspect of care, welfare or development of the child.

This can be a distressing process so every effort should be made to reach an agreement outside of the Court process. Such efforts may involve utilising community organisations like Relationships Australia or conducting private mediation.

Property Settlement (Division Of Property And Liabilities)

Having obtained a divorce confirming your marital status, you should consider finalising your financial relationship. A property settlement provides for the division of assets between you and your partner after you have separated. Every property settlement is different because it is determined by your individual circumstances.

A property settlement can include various assets such as

• Property (owned jointly or individually);
• Superannuation;
• Business interests;
• Trust interests;
• Inheritance;
• Share portfolios;
• Motor Vehicles;
• Cash at bank;
• Jewellery;
• Antique or art collections;

Reaching an overall agreement without going to Court allows you to save time and money, whilst reducing the stress and tension associated with Court processes. If a reasonable settlement cannot be agreed upon via private negotiation or mediation, then an application to the Court will be appropriate. 

De-Facto Separation

Although de facto couples do not need to legally divorce, your rights to a parenting and property settlement are the same as married couples. An important difference to consider is that de facto couples have 24 months from the date of separation to make an application to the Court to determine settlements, whereas divorced couples have 12 months from the date of the divorce order. Exceptions to these time limits do apply, so if you happen to fall outside of these time periods simply get in touch with your lawyer to obtain some advice.

For more information regarding divorce, parenting orders and/or property settlement please do not hesitate to get in touch with us.