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The decision to divorce is never easy and it can be particularly hard to know where to start. There are a number of eligibility requirements involved when applying for divorce in Australia. Family and Relationship Law Senior Associate, Elisabeth Blackwell, has summarised these requirements below.
Marriage Certificate & Domicile
To be eligible to make an application for divorce in Australia, you will need a copy of your marriage certificate and if your marriage certificate is in a foreign language, it will need to be translated into English by an approved translator. At least one party to the divorce application must also be domiciled in Australia. This means that you or your spouse must either:
- be an Australian citizen by birth or descent or by grant of an Australian Citizenship;
- regard Australia as your home and intend to live indefinitely in Australia; or
- have lived continually in Australia for 12 months immediately before filing for divorce, not including overseas holidays or business trips.
Separation Periods
You are also required to have been separated for at least 12 months before you are eligible to make an application for divorce. This time period is accumulative and excludes any time that you have reconciled for less than 3 months. If you have reconciled for 3 months or more then the 12 month time period will restart.
If you have lived separately under one roof or you have reconciled for no more than 3 months then the application for divorce will need to be supported by an affidavit and you will be required to attend a hearing.
Length of Marriage
If you have been married for less than two years, then you are generally required to attend counselling before you make an application for divorce. This requirement may be waived with leave from the court in special circumstances, including where there is a history of family violence.
If there are children of the relationship under the age of 18, at least one party must attend the hearing, unless a joint application is made.
Sole Versus Joint Application
To make a sole application for divorce, your former partner does not need to agree to the application. However, you will need to arrange for the application to be personally served upon them. Alternatively, they may agree to sign an acknowledgement of service.
If the parties agree to make a joint application for divorce, then the service requirement is waived and generally the requirement to attend the hearing is also waived.
To be eligible to receive the Court’s pension discount for the filing fee, both parties must hold a current pension card for this to be applied to a joint application.
Financial Settlements
A divorce order does not determine your financial settlement. Once a divorce order is made, the limitation period for you to finalise your financial matters via the court will start to run. You have 12 months from the date of divorce to apply to the court for a determination of your financial matters. It is not impossible, but it can be difficult to obtain leave from the court to proceed ‘out of time’.
For this reason, we generally recommend to clients that they deal with finalising their property settlement matters before filing a divorce application.
