A couple must meet certain requirements before they can apply to divorce in Australia. They must satisfy the citizenship requirement and the marriage itself must be legally recognised under Australian law. There are waiting periods that the parties must observe, and further divorce requirements for marriages of shorter duration. The dissolution of marriage occurs under the federal Family Law Act 1975, so the requirements are the same no matter where the couple lives in the country. This article outlines the requirements for divorce in Australia.
Divorce Requirements: Citizenship
A divorce application is filed in Division 2 of the Federal Circuit and Family Court of Australia (FCFCA) but it can only be heard if one of the parties has citizenship through descent, birth or naturalisation. An applicant not born in Australia can prove citizenship through the presentation of a passport. There are other ways to satisfy residency requirements, such as living in the country for at least 12 months prior to application.
Australian courts only have jurisdiction over marriages that took place in Australia or that the applicant can prove occurred legally overseas. If the marriage happened in another country, then the applicant must provide a copy of their marriage certificate with their divorce application. If the certificate is in a foreign language, then a translation must be attached to the divorce application, as well as an affidavit from the registered translator.
A major divorce requirement is that the marriage itself must be legally recognised in Australia. As such, the marriage must have been undertaken with the full and informed consent of both parties, without duress, fraud, mistaken identity, or mental incapacity. The marriage must also be of a type that is validly recognised in Australia. An overseas marriage will not be recognised if either party was not of marriageable age under Australian law. A lawful marriage cannot be between biologically close relatives, such as siblings, parent and child or grandparent and grandchild. While many countries allow bigamous and polygamous marriage, they are not recognised in Australia.
Until 2017 a same-sex couple that married overseas could not meet the divorce requirements in Australia. That is because until that date, same-sex marriage was not legally recognised here. With the Marriage Amendment (Definitions and Religious Freedoms) Act 2017, same-sex marriage became legal in Australia, and same-sex couples can now divorce just like heterosexual couples. Same-sex marriages that took place overseas must follow the Australian divorce requirements for overseas marriages.
Divorce Requirements: Separation
The key requirement for being granted a divorce in Australia is that the marriage has irretrievably broken down, and that the couple has been legally separated for at least 12 months.
It is sometimes necessary for separated couples to continue to cohabitate in the same home. This is mainly to facilitate shared custody of children, or for financial reasons. Australian law permits a couple to demonstrate that they have been separated for 12 months even if they have been living “separately under one roof”, if evidence can be provided to the court to substantiate the claim. Both partners should file affidavits with the court clarifying the living arrangement. The court also finds third party corroborating affidavits from people with knowledge of the couple’s separation to be compelling.
There is a no-fault principle to divorce in Australia, so there is no requirement to prove or admit fault. This means that the infidelity of either party is irrelevant to the seeking or granting of a divorce and that even serious conduct such as domestic abuse is immaterial. In Australia, the only thing that matters is that there has been an irretrievable breakdown of the marriage – that is, the marriage is no longer capable of being sustained. Most couples are not required to demonstrate that they have tried to reconcile.
Divorce Requirements: Counselling
There is an exception for couples who are newlyweds. Couples that have been married for a period shorter than two years must attend counselling sessions before filing for divorce. The spouses must make a sincere effort to reconcile and engage in counselling, but if the process is unsuccessful then the therapist will provide the couple with a document stipulating that they have attended counselling sessions. The applicant must attach this counselling certificate to the divorce application as proof that this requirement has been met. This requirement may be waived, however, if there are concerns over the safety of the parties, for instance in cases of domestic violence.
Anyone can fill out a divorce application, and there is no requirement for a lawyer to be involved. However, it is highly advisable to seek legal advice before proceeding, particularly if there are joint property holdings or children of the marriage.
Our family law experts at Armstrong Legal can advise you on the divorce requirements in your particular circumstances. Please telephone 1300 038 223 or send an email to make an appointment with one of our friendly and professional family lawyers.