Marriage & Divorce

In Australia, marriage is the union of two people to the exclusion of all others voluntarily entered into for life. Divorce is the dissolution of a marriage.

Divorce is often the simplest part of a family law matter. The application for divorce form is relatively straightforward and intuitive and if you are required to attend court, this too is generally quick and requires minimal submissions.

There are, however, important tips and traps to be aware of if you plan to apply for a divorce. Being fully informed of the divorce process and legal framework will ensure that your divorce proceeds smoothly. It will also ensure that you do not inadvertently impact on your family law property settlement, spousal maintenance claim or parenting matter.

In many instances, Armstrong Legal will recommend that our clients represent themselves in their divorce case as it can be an effective way to minimise our clients’ legal fees. Even if you do decide to represent yourself in your application for divorce, it is strongly recommended that you obtain legal advice from a family lawyer before seeking a divorce. This will ensure that you are aware of the impact the divorce is likely to have on the rest of your family law proceedings and, importantly, that you do not do something that will prejudice your position.

If you are unsure what divorce is or whether you are eligible to apply for a divorce or if you don’t know how to obtain a divorce or understand how it fits into your family law case more broadly, we invite you to browse our detailed webpages below. These pages have been created by Armstrong Legal’s family law team to answer the common questions that our clients have and to provide you with further help and guidance about divorce.

Under Section 39(3) of the Family Law Act 1975, to be eligible to apply for a divorce in Australia, one of the spouses must:

• be an Australian citizen; or
• be domiciled in Australia; or
• be ordinarily resident in Australia or must have been for one year prior to the filing of the application;

on the date in which the application for divorce is filed with the court.

Upon satisfying the criteria pursuant to section 39 (3), either the parties separately or the parties jointly may make an application for divorce to the Federal Circuit and Family Court of Australia (FCFCA).

Criteria for getting a divorce in Australia

To grant the parties’ application for divorce the court must be satisfied that the parties are legally married, in addition to the following matters under section 48 of the Act:

• the marriage has broken down irretrievably;
• the parties have separated and lived separately and apart (this can occur under the one roof) for a continuous period of not less than 12 months;
• that there is no reasonable likelihood of cohabitation being resume by the parties.

For parties that were married for less than 2 years, they are required to file a counselling certificate with their application for divorce or an affidavit setting out the reasons counselling was unsuitable.

Resuming cohabitation

Section 50 of the Act deals with the situation where separated parties to a marriage resume their relationship.

Where parties resume the relationship on one occasion, for a period of less than three months, the period for which the parties were separated and lived separately up to the date of filing the application for divorce will be aggregated as though it were once continuous period.

Attending the divorce hearing

Parties should always attend the divorce hearing, particularly in circumstances where the application is either made by only one party or if there are children of the marriage under the age of 18.

Section 55A of the Act provides that the court needs to be satisfied that if there are children under the age of 18, that proper arrangements have been made for the care, welfare and development of the children. This may be by way of court order, parenting plan or informal agreement.

The court may require the parties or legal representatives to address the court on this fact.

When does the divorce order take effect?

Once the court has granted a divorce order, the order will take effect one month and one day after the order was granted by the court.

Time limitations

Parties who have been granted a divorce order and who have not had their property settlement finalised by way of a court order or financial agreement, have 12 months from the date the divorce order was granted to apply to the court for a property settlement.

If you would like legal advice contact Armstrong Legal on 1300 038 223 or send us an email.