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When can you get a divorce in Australia?
You can get a divorce in Australia as long as you’ve been separated for at least 12 months. You must also show a connection to Australia, there’s no chance of a reconciliation and there are proper arrangements for any children under 18.
Here, we explain the 3 criteria you need to meet if you want to apply for a divorce in Australia.
There's a useful checklist at the end of the article and we also explain you a couple of things you should know before you get a divorce.
1 - Connection to Australia
If you were married in Australia, that doesn’t mean you can automatically apply for a divorce here.
You or your spouse must show a connection to Australia in one of 4 ways.
One of the following 4 things must apply to either you or your spouse -
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You live here, regard Australia as your home and intend to continue living in Australia.
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You’re an Australian citizen by birth or descent.
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You’ve been granted Australian citizenship.
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You live in Australia and have been living here for the last 12 months.
2 - Separated for at least a year
In Australia we have a system of no fault divorce.
This means the court does not look at why you broke up.
You just have to prove the marriage has ‘broken down irretrievably’.
To do this, you simply have to show you’ve been separated for at least one year.
For example, if you separated on 1 September 2015, you can’t apply for a divorce until 2 September 2016.
3 - Possible reconciliation
The court must be satisfied that your marriage has broken down irretrievably, which means permanently.
If there’s any chance you’ll get back together, the court won’t give you a divorce.
That’s it!
If you meet these 3 criteria, you’re eligible to apply for a divorce in Australia.
Now here are a few other things you need to know.
Marriage certificate
To get a divorce in Australia, you must be legally married.
You don’t have to be married in Australia, but your marriage must be recognised here.
When you file your application for divorce, you’ll have to give the court a copy of your marriage certificate.
If you don’t have one, you’ll have to get one from the registry of Births Deaths and Marriages.
If you were married overseas, you’ll need to get a copy from the relevant registry in the country where you were married.
Children
The court will only grant a divorce if it’s satisfied proper arrangements have been made for all children under 18.
The application for divorce asks you to give details about ongoing arrangements for the care of children.
This includes, who they live with, spend time with, financial support, health and education.
A child of the marriage includes children born before you were married and after you separated.
They also include adopted children and any children who were treated as a member of your family such as foster children or step-children.
Separated but living in the same home
It is possible to be separated but still live together in the same home
Your divorce kit contains a page which lists all the registries where the divorce application can be filed.
It’s called ‘separation under one roof’.
There are extra things you’ll have to do to prove you really are separated.
Be sure to look at our article on separation under one roof.
Married less than 2 years
If you’ve been married for less than 2 years, you can still get a divorce, but you have to attend counselling first to discuss the possibility of reconciliation.
The court requires a certificate from the counsellor setting out the outcome.
For more information on this situation, please look at ‘How to get a divorce if married under 2 years’.
Some other things of interest
You can apply for a divorce on your own. It’s called a sole application for divorce.
You can also apply for a divorce together with your spouse. It’s called a joint application for divorce.
A joint application is the easiest and cheapest way to get a divorce.
You don’t have to mess around with serving documents on your spouse and you can also share the costs.
You have to pay the court a filing fee when you lodge your application for divorce.
The fee increases each year in July. As at June 2021 the fee was $930, but it can be reduced to $310 if you qualify.
Importantly - a divorce does not decide issues about property, maintenance or your children.
Important time limits
A divorce is simply the legal end to your marriage. It does not decide issues about your children, property or maintenance.
Once your divorce becomes final, any application for property and/or maintenance must be made within 12 months.
You should keep this deadline in mind when deciding what’s best for your future.
Checklist
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You or your spouse, must show that Australia is your home, you’re an Australian citizen or you live here and have done so for the last 12 months.
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You need to be separated for at least a year.
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There’s no chance you’ll get back together.
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A copy of your marriage certificate.
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Show that proper arrangements have been made for the care of children.
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If you’ve been married less than 2 years, you’ll need to go to counselling.
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A joint application is the easiest way to get a divorce.
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There’s a filing fee you have to pay to the court when you file for divorce.
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Once your divorce becomes final, any application for property and/or maintenance must be made within 12 months.
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You should keep this deadline in mind when deciding what’s best for your future.
Don’t waste hundreds or even thousands on a lawyer when you can do your own divorce.
We can easily provide you with everything you need to arrange and manage a simple and straight forward divorce.