Divorce is the official ending of a marriage. When a divorce order is made final, you can remarry. The only requirement for a divorce is the ‘irretrievable breakdown’ of the marriage. This is proved by both spouses having been separated for 12 months with no likelihood of getting back together.
Your partner does not have to agree to the separation, however, they need to know that you think the marriage is over.
The court does not consider whose fault it was that the marriage broke down.
You do not have to get a divorce when you separate unless you want to remarry, but staying married affects your rights and obligations in relation to financial matters. We can help you and give you advice on the above.
To apply for a divorce, you or your spouse must have been separated for at least 12 months and either:
- be an Australian citizen
- live in Australia and think of Australia as your permanent home, or
- usually live in Australia and have done so for at least 12 months before the divorce application.
You can apply for a divorce together (joint application) or on your own (sole application). If you are making a joint application you do not need to go to court. If you are making a sole application and your children are under 18 and were part of the family prior to separation, you must go to court unless circumstances stop you from attending.
You should allow several months from the time you file for divorce to the actual date of divorce. If there are problems with your application, it may take longer.
Your divorce will not become final until one month after the hearing, at which time the court will issue a divorce certificate.
However, if you were back together for four months, only the most recent eight months would count as separation.
Living separately ‘under one roof’
It is possible to get a divorce if you live in the same house after separation but lead separate lives.
In deciding whether you separated ‘under the one roof’ the court will consider whether:
- you sleep together
- you have sex or engage in sexual activity
- you share meals and domestic duties (in a different way than when you were married)
- you share money and bank accounts
- your friends and family think of you as separated.
If this applies to you and you want a divorce, you will need to prepare supporting affidavits. We can help you with the process and with the correct legal advice.
You cannot remarry until your divorce order becomes final.
Be careful not to set your following wedding date too close to the expected date of your divorce order becoming final. If there is a delay, you will not be able to go ahead with your wedding until the problem is sorted out and the divorce is granted.
Property settlement and children’s arrangements
A divorce does not sort out issues relating to children or property.
Division of property must be done within 12 months of the date of the divorce order.
If you can’t agree on arrangements for children, you can try to sort out your issues using family dispute resolution. If you can not reach an agreement then you may need to go to court.