Divorce - Facts and FAQs

Posted in: Family Law Tuesday, 21 August 2018

what is divorce

Separation and divorce are among the toughest experiences you will ever go through.

The end of a relationship is an extremely difficult time. You can expect to feel intense emotions and sometimes think that you are not coping. 

CLO Lawyers is a divorce law firm that understands the painful and distressing responses that you may experience as a result of a relationship breakdown. We provide support and guidance to help you navigate the legal issues arising from your separation and help with information about support services you can access. 

Don’t go it alone – your divorce lawyer will apply their family law knowledge and accumulated experience to reduce the stress, anxiety and uncertainty of your separation and divorce experience. 

Contact our dedicated divorce solicitors, Murray Crawford and Sarah Marsden, to discuss your family situation, and receive guidance as to the best way forward.

What is divorce? 

Divorce is the legal termination of a marriage. 

The Federal Circuit Court of Australia has the power to deal your divorce (dissolution of marriage). 

The granting of a divorce does not determine issues of financial support, property distribution or arrangements for children. It simply recognises that the marriage has ended. 

Divorce in Australia follows the no-fault principle. This means that the court does not need to know the reason for the divorce, just that the marriage has broken down irretrievably. 

Divorce can be granted before or after the resolution of property settlement or matters relating to children. 

The divorce laws in Australia provide that married couples who wish to divorce need to be separated for at least 12 months with no reasonable likelihood of resuming married life, before they can lodge their divorce application. It is possible to live together in the same home and still be legally separated (“separation under the one roof”).

What is separation? 

Separation is defined in Australia as the ending of a marriage or a de facto relationship. 

While there is no need to officially register a separation, it is important to take note of the date of separation for other proceedings you might wish to pursue.

Divorce and same sex couples 

From 9 December 2017, same-sex marriage became legal in Australia. Therefore, sex and gender no longer affect the right to marry under Australian law. 

Further, from 9 December 2017, Australian law recognises existing and future same-sex marriages solemnised overseas under the law of a foreign country. 

Same-sex couples whose marriages are recognised can access Australia’s family law system, including divorce, regardless of when the marriage was solemnised. 

The divorces of same-sex couples who divorced overseas before 9 December 2017 are also recognised in Australia. 

Same-sex couples who divorce overseas on or after 9 December 2017 will have their divorce recognised in Australia in the same circumstances as any other married couple.

Who can apply for a divorce?

You can apply for a divorce in Australia if either you or your spouse:

  • regard Australia as your home and intend to live permanently in Australia indefinitely, or 
  • are an Australian citizen by birth, descent or by Australian citizenship; or 
  • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce. 

An application for divorce can be made by you, your spouse, or by both parties jointly.

What a court considers in divorce applications 
The Family Law Act 1975established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended. 

The only grounds for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably. 

If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.


Can I oppose a divorce application? 

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application.

You can only oppose the divorce where:

  • there has not been 12 months separation as alleged in the application, or
  • the Court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file Response to Divorce and appear in person on the hearing date. 

You need to set out the grounds on which you seek the dismissal in the Response to Divorce. 

If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.

What if the application has errors of fact?

If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce.

You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You do not need to attend the hearing.

When should I file the Response to Divorce?

If you want to file a Response to Divorce, you need to file it:

  • if served in Australia – within 28 days of the application being served on you, or
  • if served outside of Australia – within 42 days of the application being served on you.

You can electronically file (eFile) a Response to DivorceCommonwealth Courts Portal or file it at a family law registry.

Do I have to attend the divorce hearing? 

No children under 18 

If there is no child* of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.

Joint application with children under 18 

If you have made a joint application, you and your spouse are not required to attend the court hearing (even if there is a child of the marriage aged under 18). 

Sole application with children under 18 

If you have made a sole application and there is a child of the marriage aged under 18 years, you (the applicant) are required to attend the court hearing unless circumstances prevent you from attending (see below). 

  • If there is no Response to Divorce, the other party is not required to attend, although they may do if they wish. 
  • If a respondent has completed and filed a Response to Divorce, but does not oppose the application, he or she does not need to attend the hearing. 
  • If a respondent has, in Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.

* A child of the marriage includes:

  • any child of you and your spouse, including children born before the marriage or after separation
  • any child adopted by you and your spouse, or
  • any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.

What if I can't attend the hearing? 

If it is difficult for you to attend in person, you may ask the Court to appear by telephone. You must complete a Telephone/Video link attendance request form setting out the reasons why you are requesting to attend by telephone/video link. 

We are getting divorced – will decisions about future arrangements for our children, property and maintenance be made at the same time? 

The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:

  • make an agreement with your spouse and file it with a court, or
  • seek orders from a court, where you and your spouse cannot reach an agreement.

For parenting cases, you also have the option to make a parenting plan. 

For information about parenting plans, go to www.familyrelationships.gov.au 

If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply. 

I have applied for a divorce, is it safe to set a wedding date for my new marriage? 

You should not make firm plans to marry on a specific date until the divorce order is finalised. You may, however, complete and lodge a Notice of Intended Marriage with an authorised celebrant before the divorce order is finalised.

If you intend to remarry, you must lodge the Notice of Intended Marriage with an authorised marriage celebrant at least one month before the date the marriage is solemnised, and comply with other requirements of the Marriage Act 1961. The authorised celebrant must sight a copy of the divorce order before the wedding can take place. In most cases, the divorce order takes effect one month and one day after the divorce is granted. You should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.

What is meant by separation under the one roof? 

It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time. 

We want to divorce but have been married less than two years. We understand we have to do certain things, what are they? 

If you have been married less than two years you will need to file a counselling certificate. To obtain a certificate you will need to attend counselling. 

The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce. 

I married overseas – can I get a divorce in Australia?

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse: 
  • regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
  • are an Australia citizen by birth or descent
  • are an Australia citizen by grant of an Australia citizenship
  • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file an English translation of it, and an affidavit from the translator.

I got divorced overseas – is it recognised in Australia? 

You can apply for a divorce overseas. Australia will recognise a divorce if it was effected in accordance with the laws of that country. 

Useful links to information regarding divorce in Australia 

Family Court Website: www.familycourt.gov.au
Family Relationships Online – An Australian Government Initiative: www.familyrelationships.gov.au

Contact your divorce law firm – CLO Lawyers 
Contact your divorce lawyers Murray Crawford and Sarah Marsden today on 07 4631 9000

About the Author

Murray Crawford

Murray Crawford
Director
 | BEc, LLB, LLM (Applied Family Law)

With a passion for the law and a strong social conscience, Murray is a strong advocate who’s focused on achieving positive outcomes for his clients and supports the community through leadership positions with several not-for- profit organisations.

For more information about him, see details here.

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