Family Law - Divorce. What is the Process and what you should know?

No fault divorce

In Australia we have the principle of no-fault divorce. This means that when the court is granting a divorce it does not need to consider why the marriage ended. The court must simply be satisfied that the marriage has broken down and there is no reasonable likelihood that the parties will get back together.

Under Part VI of the Family Law Act the Federal Circuit Court of Australia has the jurisdiction or power to deal with dissolution of marriage. The granting of a divorce does not determine issues of financial support, property distribution or arrangements for children. It simply recognises that the marriage has ended.

Applying for divorce

There are certain jurisdictional requirements that must be met before you can apply for a divorce in Australia.

You can apply for a divorce in Australia if either you or your spouse:

• regard Australia as your home and intend to live in Australia indefinitely, or
• are an Australian citizen by birth, descent or by grant of Australian citizenship, or
• ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

In addition to the above, you will also need to be able to satisfy the court that and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. Whilst it is possible to live together in the same home and still be separated, you will have to provide additional information to satisfy the court that you were separated during this time.

Divorce FAQS

Do I have to attend the divorce hearing?

If there is no child of the marriage aged under 18 years, you are not required to attend the court hearing.

Does an Application for Divorce also determine how the assets of our relationship are distributed?

No! The granting of a divorce does not determine issues of financial support, property distribution or arrangements for children. It simply recognises that the marriage has ended. You will need to speak to your lawyer to discuss your rights in relation to property settlement!

Does an Application for Divorce determine how much Child Support Should be Paid?

No! To determine how much child support should be paid and by whom you will need to contact the Child Support Agency.

Can I oppose an Application for Divorce?

The only basis on which you can oppose an Application for Divorce is if you have not been separated for more than 12 months or the court does not have jurisdiction.

If my partner and I were married overseas can we apply for a divorce in Australia?

If you and your spouse were married overseas there are certain jurisdictional requirements that you must meet in order to be able to apply for a divorce in Australia.

You can only apply for a divorce in Australia if you or your spouse:

• regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
• are an Australia citizen by birth or descent
• are an Australia citizen by grant of an Australia citizenship
• ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

If your marriage certificate is not in English, you need to file an English translation of it, and an affidavit from the translator.

Our Divorce Lawyers

Williams family lawyers will provide you with calm, expert assistance and advice in working through your divorce process and settlement. Call us to assist you with this often difficult time.