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Divorce is defined in section 4 of the Family Law Act 1975 (Cth) as “the termination of a marriage otherwise than by the death of a party to the marriage”. Marriage, is defined in the Marriage Act 1961 (Cth), to mean ‘the union of two people to the exclusion of all others, voluntarily entered into for life’.
In Australia, there is a ‘no-fault’ divorce, meaning that one party does not need to establish that the other party wronged them in order to apply for divorce. The only ground that needs to be established pursuant to section 48 of the Act is that the ‘marriage has broken down irretrievably’.
Parties only need to establish that they have been living separately and apart for at least 12 months. Further, the Court also needs to be satisfied that there is no reasonable likelihood of cohabitation resuming between the parties.
The Court will need to also see evidence that one of the parties has been domiciled in Australia either by citizenship or through a current and valid visa including for 12 months prior to filing the application for divorce.
Divorces can either be applied as a joint application or sole application. Different procedures are involved depending on which type of application you are seeking to file in Court.
Separation is considered to occur when one party has the intention to separate on a final basis and then communicates this intention to the other party. There are some situations where parties may have been living separately and apart although under the same roof because of a variety of factors including children, financial circumstances or illness.
If this has occurred, the Court will need to see evidence of the separation and how parties have lived separately and apart during those periods whilst they have remained living under the same roof.
Section 44(1B) of the Act mandates that a couple seeking to apply for divorce within the first 2 years of their marriage must attend counselling or file evidence why the counselling is not appropriate or cannot occur.
There are several aspects involved in the process of applying for divorce that you may wish to retain a lawyer to guide you in your matter. These can include advising you on property settlement limitation periods, proper service of documents to the other party including if they are overseas, establishing domicile, translation of marriage certificates and proving necessary arrangements for children or making submissions on the day of your Divorce Hearing for the divorce application to proceed.
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