To apply for a divorce in Australia there are several criteria that you must meet:
When applying for a divorce there are a number of other things you may need to consider, including changing your passwords and opening a bank account in your own name.
Checklist: What to do when you separate
De facto relationships
A de facto relationship is a relationship between two people who live together on a genuine domestic basis, and who are not married or related by family. This includes same-sex couples.
If you were in a de facto relationship, you don’t need to apply to for a divorce.
You can still apply to the court for Parenting Orders and Property Orders.
If you were in a de facto relationship you have two years from the date of separation to apply for Property Orders or Maintenance Orders. If you and your spouse need to negotiate a property settlement, you should get legal advice.
For more information, see De facto Relationships on the Federal Circuit and Family Court of Australia website.
Aboriginal customary marriages
Aboriginal customary marriages aren’t recognised as legal marriages in Australia - they are treated as de facto relationships by the law.
If you and your spouse were in an Aboriginal customary marriage, you don’t need to apply for a divorce.
You can still apply to the court for Parenting and Property Orders.
You have two years from the date of separation to apply for Property Orders. If you and your spouse need to negotiate a property settlement, you should get legal advice.
No fault divorce
In Australia, divorces are granted on a no-fault basis. This means you don’t need to show to the court who was at fault for the breakdown of your marriage. You only need to show that your marriage has irretrievably broken down - that there is no chance you will reconcile with your spouse.
Who can apply for a divorce in Australia?
You can apply for a divorce in Australia if either you or your spouse:
- are an Australian citizen, or
- regard Australia as your home and intend to live here indefinitely, or
- ordinarily live in Australia and have done so during the 12 months immediately before filing for divorce.
If you were married overseas, you can get a divorce in Australia as long as:
- you or your spouse are an Australian citizen or live in Australia
- your marriage overseas was a valid legal marriage according to the laws of the country where you got married.
Sometimes overseas marriages may be classified as de facto relationships depending on the validity of the ceremony in that country. If you are not sure if the marriage was valid, you should check your marriage status on your immigration papers or get legal advice.
If you were validly married, you must file a copy of your Marriage Certificate with your Application for Divorce.
If your Marriage Certificate is not in English, you will need to file an English translation and an Affidavit completed by the translator.
You may have to pay a fee to have your Marriage Certificate translated.
For more information about getting a translation of your Marriage Certificate, see Interpreting & Translation on the Multicultural NSW website.
If you can’t get a copy of your foreign Marriage Certificate, you should get legal advice.
12 month minimum separation period
You must have been separated from your spouse for at least 12 months before you can apply for a divorce. The 12 month period is calculated from the date of separation until the date the Application for Divorce is filed.
If you file an Application for Divorce before 12 months has passed, your application will be adjourned or dismissed.
Getting back together
You can still apply for a divorce if you and your spouse lived together as a married couple for one period of less than three months after separating.
You can count the first period of separation towards the 12 month minimum separation period. You can’t count the time you lived together as a married couple.
If you lived together as a married couple for more than three months after separating, you must begin counting the 12 months minimum separation period from the second date of separation. You can’t count the first period of separation towards the minimum separation period.
If you and your spouse have a child under 18 years old, the court needs to be satisfied that you have made proper arrangements for your child before it will grant you a divorce.
A child of the marriage includes:
- a child of you and your spouse, including a child born before the marriage or after separation
- a child adopted by you and your spouse
- a child that was treated as a member of your family prior to separation, for example, a step child or foster child.
You must include the details of arrangements in your Application for Divorce. The court needs to be satisfied that the appropriate arrangements have been made or that there are reasons why a Divorce Order should be made even though the court is not satisfied that arrangements have been made.
The court does not make Parenting Orders or Property Orders at the same time as a Divorce Order.
If you and your spouse are not able to reach an agreement about arrangements for your child, or you are considering applying for Parenting Orders or Property Orders, you should get legal advice.