FamLaw: Back to Basics: the Requirements for Divorce

Written by James Frank | 10/06/16 12:54 AM

If you want to get a divorce, the first question on your mind probably isn’t ‘What is a divorce?’ Most people would be confident in their understanding of a divorce. However, it should be – divorce has certain legal requirements which you may not be aware of and which need to be fulfilled.

First off you can only apply for divorce in Australia if you:

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

You may need to provide documentation evidencing this.

Divorce is a relatively simple process. There are 4 requirements:

You are married

Only married people can get a divorce. It seems obvious but you would be surprised how many people can mix this up!

The relationship has broken down irretrievably

Your relationship must be broken down to the point where it is highly unlikely it could be fixed.

There has been a separation of at least 12 months

To apply for divorce, you and your partner must have been separated for at least 12 months. Separation may occur while you and your partner have been living under one roof and will depend upon your circumstances. In most cases, the couple agrees on a date that they believe a final separation occurred.

There is no likelihood of resuming your relationship

It is not likely that you will restart your relationship with your spouse.

A couple of closing points…

There are some other requirements which have been held to apply in certain circumstances. If you have been married for less than 2 years, you are required to attend counseling to discuss the possibility of reconciliation. If this is unsuccessful, you must attach a completed Counselling Certificate to your application. Alternatively, you may seek the permission of the Court to apply for Divorce without this counselling by filing an affidavit with your application in only very specific circumstances.

If you have been married overseas, then an English translation of your marriage certificate is required. It is also a good idea to check if you are legally married under Australian Law.

If you have a family law matter, concerns on your divorce or questions about family law and divorce in NSW and want to find out more please do not hesitate to contact us on 9688 6023 or email us at info@franklegal.com.au.

This article is provided to the reader for general information. It is not legal advice. It was written by Andrea Spencer & Emily Graham and edited by James Frank.