This information will help you to understand getting a divorce in Australia. Find out:
- what you need to prove to get divorced
- how to apply for a divorce order from the Family Court
- how the court deals with divorce applications.
What do I need to show to get a divorce?
Australia has 'no-fault' divorce laws. You do not have to prove that the other person was the cause for the relationship ending. The Court does not consider why the marriage ended. The only ground for divorce is that the marriage has irretrievably broken down.
You must be able to show the court that:
- you have been separated from your former partner for at least 12 months before you applied for a divorce, and
- there is no reasonable chance of reconciliation (getting back together).
If it has been less than 2 years from when you got married (including at least 12 months of separation), you will also need to provide a counselling certificate to show that you have attended counselling to look at your options for reconciliation.
How do I apply for a divorce?
It is not necessary for both of you to agree to getting divorced. Applications for divorce can be submitted by one person (a sole application) or together as a couple (a joint application).
You can apply online through the Family Court of WA website. You can also ask for a Divorce Application from the Family Court Registry. You will need to pay the correct fees when you apply for divorce.
If you apply on your own, you must make sure that your former partner is served with a copy of the application after it is filed with the court. The court will not make a divorce order unless it is satisfied that your former partner knows the application has been made to the court.
How does the court deal with the application? Does it look at children and property arrangements?
Once your application is filed, you will be given a hearing date for the divorce application to be heard by the Family Court. This date is usually about one to three months after the application was filed.
If you and your former partner do not have children under 18 years old (including adopted and step-children), it is not necessary for you to come to court for a hearing (for sole and joint applications).
If there are children under 18 from the relationship, it is not necessary to attend if it was a joint application. If you made a sole application for divorce, you will need to attend the divorce hearing. The court will need to see that there are arrangements in place for the children before granting the divorce. This includes arrangements for their financial support, education, and housing. You do not need to reach a final agreement on parenting arrangements with the other parent before you apply for a divorce.
A divorce does not deal with property settlement. You will need to make your own agreement or apply for property orders. Time limits apply: you cannot start a property case if it has been more than 12 months since the court granted a divorce order.
If you are getting close to the deadline and you need property orders, you should get legal advice about asking for the court's permission to start a property case.
Can I object to a divorce?
If you are served with a sole application for divorce, you have the option of filing a response, which can say that you are objecting to the application. The only grounds to object to a divorce are that:
- you have not been separated for at least 12 months, or
- the court does not have jurisdiction to grant a divorce.
If there are mistakes in the application (such as the spelling of names or incorrect details), you can also file a response to ask for those things to be corrected, without necessarily objecting to the application.
If you file a response to say that you object to the divorce, you must attend the court hearing or else the court can decide the application in your absence.