Ending a marriage or de facto relationship leads to significant legal issues, including the welfare of any children of the marriage, and dividing property and finances.
In law, divorce is called a dissolution of marriage. In Australia, all applications for dissolution of marriage must be made in the Family Court of Australia, the Federal Magistrates Court or, if the couple was married in Western Australia, the Family Court of Western Australia. In the Northern Territory, couples seeking a divorce apply to the Northern Territory Supreme Court.
Either the husband or the wife can apply, by lodging the application form, plus the marriage certificate, with the court.
The only grounds for divorce is ‘irretrievable breakdown of the marriage’, where there is no way to save the marriage. The couple must also have been separated for 12 months before a dissolution order will be made. If they’ve been married for less than two years, they’ll also need a certificate from a counsellor stating that they’ve considered reconciliation.
The application can be prepared without a lawyer, and if there are no children of the marriage under 18 years old the couple don’t have to be in court.
Usually, the court will make an order declaring that a divorce will be granted, which will take effect one month later.
The court can refuse to make an order if it’s not satisfied that proper arrangements for any children of the marriage under 18 years old have been made.
People married overseas can apply for a dissolution of marriage if one or both of them is an Australian citizen or resident or regards Australia as their permanent home. The court will need a copy of the marriage certificate. If it’s not in English, the person applying will need to get:
- an English translation of the marriage certificate and
- an affidavit from the translator, which must:
- state his or her qualifications to translate
- be attached to a copy of the marriage certificate together with the translation and
- state that the translation is accurate and that the attached copy
of the marriage certificate is a true copy of the translated marriage certificate.
Opposing a divorce
Provided a couple have been separated for more than 12 months, there are few grounds opposing an application for divorce. However, if a spouse wants to respond they can file a Response to Divorce or, if the response relates to jurisdiction (such as neither spouse having any connection to Australia) a Response to Jurisdiction (Divorce).
Do-it-yourself divorce kits
The Federal Magistrates Court has a divorce kit which includes an application form and a guide to completing it.
The court charges a filing fee.