Legal Divorce in Australia

Jurisdiction

According to the Family Law Act 1975 (Cth) (“FLA”) to commence divorce proceedings, you must be an Australian citizen, domiciled in Australia or resident in Australia for the last 12 months. As these are not cumulative, only one requirement must be met.

“Domicile” refers to the country of permanent residence to which a person has a close and real connection.

To apply for a divorce, you must provide proof of a valid marriage such as your Marriage Certificate.

Grounds for Divorce

The sole ground for divorce is the irretrievable breakdown of marriage. There cannot be any likelihood of reconciliation, as the Court will not otherwise make an order for divorce.

Parties can initiate proceedings for property and parenting orders without being divorced.

Time Requirements

The Act further stipulates that an application for divorce can only be made if the parties have lived separately for at least 12 months prior to filing the application.

Separation is not dependent on a mutual decision of both parties but is established if one party ends the relationship and communicates this intention.

Separation Requirements

Indicia of separation include intention and conduct beyond mere physical separation.

Separation may be determined by comparing the relationship before and after separation.

If parties attempt reconciliation on one occasion after separation for up to 3 months and then separate again, the time before and after the reconciliation is aggregated so that it appears as one time period.

The Court may adjourn proceedings if there is evidence of possible reconciliation. The Court also considers the impact of proceedings on family and children. Provision is made to ensure parties are informed of family counselling services.

Children

The Court will only make an order for divorce if satisfied that arrangements have been made for the proper care, welfare and development of any children.

If the Court is in doubt about proper arrangements it may obtain a family consultant report.

FLA s55A(2).

When divorce order takes effect  

If the Court grants a divorce order, it takes effect at the end of one month after the order was made. You can only rescind the divorce order if you reconcile before the divorce order takes effect.

Contact David H Cohen & Co to discuss related matters or any other legal concerns. You can also pop into our Sydney CBD office on Castlereagh st.