Common Misconceptions About Divorce

This page sets out some common misconceptions about divorce.

Separation is the same as divorce

Separation occurs when a person and/or their spouse considers the marriage to be over and considers this has been communicated to the other person. Separation is a matter of fact, not a matter of law. A married couple must have been separated for 12 months before they can apply to the court for a divorce.

My spouse and I need to agree to obtain a divorce

A husband or wife may apply to the court for a divorce without consulting the other party. Alternatively, two spouses can make a joint application to the court for divorce. When one party makes the application, they are required to serve the other party with a copy of the application and provide evidence to the court that service has been effected. Where a joint application is made, service is not required.

Someone needs to be ‘at fault’ 

In Australia, an Application for Divorce does not require a party to be at fault for the breakdown of a marriage. This is known as ‘no fault’ divorce. When the court deals with a divorce application, it does not ask why the marriage has broken down. It asks only whether the marriage has broken down irretrievably.

Divorce means the end of my property dispute with my spouse

Divorce itself does not alter your legal or equitable interests in property, nor does it prevent your former spouse form making an application for a property settlement. However, once a divorce becomes final, the limitation period for you or your former spouse to apply to the court for a property settlement starts running. If you intend to seek a property settlement, you must make an application within 12 months of this time.

I cannot apply for a divorce until I finalise my property dispute

You can apply to the court for a property settlement prior to divorce, or within 12 months of the divorce becoming final. After this time, you are required to seek leave from the court to apply for a property settlement out of time. The court may or may not accept this application, depending on the reasons for the delay.

I wasn’t married in Australia so I cannot obtain a divorce in Australia

Australia has jurisdiction to make an order for divorce provided that an overseas marriage is recognised in Australia and that at least one of the spouses are an Australian citizenship by descent or a Grant of Citizenship or have lived in Australia for at least 12 months prior to making the Application and intend to continue living in Australia.

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