The process of how to divorce in Australia is relatively simple, largely in part to the introduction to no-fault based divorce under the Family Law Act 1975. However, there are a few things parties need to consider before applying to ensure that they do not spend unnecessary time and cost on their application. A divorce lawyer can assist in guiding you through the application process.
A fundamental consideration is whether one or both of the parties have jurisdiction to apply in Australia for divorce. Jurisdiction is found through one or both of the parties having:
- Australian citizenship (by birth or grant); OR
- Ordinary residence in Australia for at least 12 months immediately before the application; OR
- Considers Australia their home and intends to live there indefinitely.
If there is no evidence of either party having any of the above, the application will be rejected.
Another is separation for 12 months. While it is possible to separate in one home, evidence must be provided that the parties live separate lives. Without this evidence, the application will be rejected. Further separation must be communicated, at the minimum meaning one of the parties has told the other they consider the marriage over. Communication of separation can be telling the other party ‘I want to divorce’.
A time consideration is for short marriages. If the marriage was less than two years the court will require the parties to undergo counselling. Until a certificate stating the outcome of counselling or an exception is identified for not attending the counselling is provided, the application will not be filed.
To avoid wasting time or money on applications that are not complete in their legal requirements, it is worthwhile seeking divorce advice from a divorce lawyer.
A specialist divorce lawyer can assist and advise in your divorce. A divorce lawyer from our team is able to look at the best outcome for you and give you divorce advice as to your legal rights and entitlements.