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Frequently Asked Questions About Divorce
This fact sheet was correct at date of writing, the author cannot warrant its accuracy past 20 May 2009. This fact sheet only refers to matters which are divorces in the Federal Courts of Australia. This fact sheet only provides general legal information. If you have a specific problem please ensure you speak to a solicitor before taking action.
A divorce breaks the legal bonds of marriage. Matter such as the division of property and parental responsibility, residency and access rights are not dealt with in a divorce. These matters are best dealt with before. If you get a divorce before you have dealt with the problem of how property is to be divided you and your partner must start property and spouse maintenance proceedings within 12 months of the divorce.
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A husband or wife can apply for a divorce, either jointly or separately, if their marriage is legally recognized in Australia
Australia only has jurisdiction to grant divorces for people who are currently within its borders and intend to remain within its borders. Part C of the Family Court’s Application for Divorce is the section relating to Jurisdiction. If either you or your partner can answer yes to any of those questions you are eligible for a divorce.
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If either you or your partner cannot answer ‘yes’ to any of the questions in Part C of the Application for Divorce then the Family Courts of Australia have no jurisdiction to divorce you.
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Australia does not allow same sex partners to get married. Neither does it recognise same sex marriages legally made in other countries. Because the government does not recognize your marriage as legitimate you cannot and need not apply for a divorce in Australia.
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The Family Law Act provides that couples married for less than 2 years cannot apply for a divorce without leave of the court. To seek leave of the court the parties must attend counselling and receive a certificate from a counsellor stating that they do not wish to reconcile or that reconciliation is impossible.
To use an example from In the Marriage of Nuell: A wife wished to obtain a divorce. She and her husband had been married for less than 2 years. She attended 1 counselling session and indicated to the counsellor that she wanted a divorce and did not wish to reconcile with her husband. The marriage counsellor sent a letter to the husband asking him to attend, however the husband did not. The Court held that the parties had considered reconciliation and granted the divorce.
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Australia has a policy of ‘no fault’ divorces. This mean that neither party need to show nor the court need consider whether either party was ‘at fault’ in the marriage breakdown.
The only grounds for a divorce are that the marriage has ‘irretrievably broken down.’ The only way to prove that a marriage has irretrievably broken down is to be separated for a period of 12 months.
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Separation occurs when one party form the intent to sever the marriage bonds regardless of whether there was justification for forming the intent. The party need not communicate this intent to the other and neither party needs to leave the marital home. It is essential however that one party formed the intent to terminate the marital relationship.
Separation must be for a period of at least 12 months. The Family Law Act allows that parties may resume cohabitation briefly, if this is the case the time of separation before and after the cohabitation can be counted towards the requisite 12 months. The cohabitation period need not be a single period, it can be several periods so long as those periods do not, when added together, equal more than 3 months.
If a couple have resumed cohabitation for more than 3 months and wish to apply for a divorce they must separate for 12 months. Effectively it means the timer starts again.
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Couples can be separated under the same roof if they can show evidence that their marriage had broken down. Such evidence can be in the form of declarations from friends, neighbours, relatives and adult children stating that the couple doesn’t:
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Attend social functions together, or
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Cook for each other, or
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Perform household duties for each other, or
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Share a bedroom.
The last point is most important; it is quite difficult to show separation if the couple still maintain a sexual relationship.
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Both the Family Court and the Federal Magistrates Court of Australia can grant divorces, however all divorce applications are not filed through the Federal Magistrates Court.
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Schedule of costs are provided at both the Family Court and Federal Magistrates Court websites.
At the time of writing the costs of filing an application for divorce are $682 in the Family Court and $432 in the Federal Magistrates Court.
You can be exempted from paying fees if:
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You hold a pensioners card,
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You hold a health care card,
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You hold any card issued by Centrelink or the Department of Veterans’ Affairs that entitle you to a Commonwealth health concession,
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You are a student receiving Youth Allowance, Austudy or Abstudy,
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You are under the age of 18 years,
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You have received a grant of Legal Aid ,
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You have received a ‘Notice of Exemption’ from an approved Community Legal Centre.
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If you have no children who are under 18 then you will not need to attend court.
However, if you do have children uder the age of 18 then the court cannot finalise a divorce without being satisfied that proper arrangements have been made for the childrens' care, welfare and development.
To satisfy the court of this the applicant for divorce will have to have sufficient knowledge of the child's whereabouts and wellbeing. If your child does not reside with you and you do not see your child regularly it will be difficult for you to satisfy the court that your child's arrangements are satisfactory.
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No, anyone who fulfils the requirements of jurisdiction and grounds is eligible to apply for a divorce, and one party may file for a divorce separately to the other party.
Anyone can divorce their spouse, regardless of whether their spouse agrees to the divorce. You cannot legally stop a divorce once you have been separated for 12 months.
You may not be able to stop a separation or a divorce but the law provides you with ways to get a fair property settlement, maintenance and child support, including contact and residency rights.
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These factsheets are provided for the purpose of legal information. They should not be used as a substitute for legal advice. Should you have a specific legal problem, please seek legal advice from a qualified practitioner. The factsheets are correct at the day of their authorship, the author cannot warrant their accuracy past that day. The author cannot be liable for any inaccuracies caused by changes in legislation, common law or policy. The factsheets have been authored with a view as to the law of New South Wales, Australia. These factsheet do not apply to other jurisdictions unless expressly stated.