Divorce

  • What is Divorce? 
  • If I was married overseas, can I get divorced in Australia?
  • Do I have to get a divorce?
  • How do I get a divorce?
  • Do I need a lawyer to get a divorce?
  • When can I get a divorce?
  • What if there are children of the marriage?
  • What happens if we get back together during separation?
  • How long does it take?
  • Can my partner stop me from getting divorced?
  • Do I need to go to Court?
  • What if I disagree with the facts in the Application for Divorce?

What is Divorce? 

Divorce is the official end of your marriage. The court does not want to know whose fault it is or why you are getting a divorce. The court wants to be sure there is no reasonable chance of you getting back together. Your partner does not have to agree to you getting a divorce.

De facto couples do not have to get divorced as they were never married.

If I was married overseas, can I get divorced in Australia?

Yes – as long as you were legally married in your country and either you or your spouse:

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

If you have concerns about whether your marriage is legal, get legal advice.

Do I have to get a divorce?

No. Many people separate but don’t get divorced until many years later. You do not need to be divorced to make arrangements for children or to divide property.

The only time you must get a divorce is if you or your former partner wants to remarry.

How do I get a divorce?

You file an Application for Divorce with the family law courts. You can either make the application by yourself or you can make it jointly with your spouse.

There is a fee for a divorce. You can apply for a fee reduction in certain circumstances.

Do I need a lawyer to get a divorce?

No, you can either apply for a divorce yourself (most people do it this way) or you can get a lawyer to help you.

The family law court has a downloadable do-it-yourself divorce kit. 

When can I get a divorce?

Your marriage must have broken down, with no chance of you getting back together. You must be separated from your partner for at least 12 months and one day before you apply to the court for a divorce.

If you were married for less than two years you may need to go to counselling before you can get divorced and get a certificate from the counsellor.

You can be living in the same house, as long as you live separate lives. You may have to prove this with evidence from people who have seen you live separate lives (e.g. sleeping in different bedrooms, having separate bank accounts, not socialising as a couple and not sharing any housework together).

What if there are children of the marriage?

The court will want to make sure that proper arrangements have been made for the children, before allowing the divorce. This does not mean that you need a court order or a parenting plan but rather the Court just wants to know what the living and other arrangements are for the children.

See ‘Children’ for more information.

What happens if we get back together during separation?

You can become a couple again for up to 3 months in one period without affecting the 12-month separation period.

How long does it take?

It may take a few months for the divorce to become final. If your situation is complicated, it may take longer. If you make the application by yourself, you will need to serve a copy on your spouse. A Do-it-yourself service kit is available which sets out step-by-step how you can do this.

Can my partner stop me from getting divorced?

No. Generally the only time the Court will not grant a divorce is if:

  • You have not been separated for 12 months;                          OR
  • The court does not have the power because of a residency issue.
  • You have been married less than 2 years and have not yet tried counselling.

Do I need to go to Court?

If you make the application by yourself and there are no children under 18 years of age, or if you make the application jointly, then usually you will not need to go to court.

If you make the application by yourself and there are children under 18 years of age, then generally you need to go to court. Your spouse does not need to go to court unless he/she files a Response to Divorce.

What if I disagree with the facts in the Application for Divorce?

You can file a Response to Divorce.  The Application and the Response will then be considered by a Judge.
Fyi – In May 2015 ASIC launched a new financial literacy resource for women, ASIC’s Women’s Money Toolkit.

This resource has been a significant project, conducted in partnership with the Office for Women and in consultation with many external stakeholders.  We developed it in response to a range of factors, such as greater likelihood of time out of the workforce and/or part-time work, lower super balances, longer life expectancy etc, which in turn have implications for financial decision-making, as well as research shows that there are differences in the way that men and women interact with financial matters.

The following link to the media release explains what the toolkit is and why we have produced it, and a link to the toolkit itself, now available on ASIC’s MoneySmart website: www.asic.gov.au/about-asic/media-centre/find-a-media-release/2015-releases/15-123mr-new-women-s-money-toolkit-helps-australian-women-plan-and-manage-their-financial-future

We are continuing to add to the toolkit over time to provide more assistance and tools on other financial issues and I am delighted to let you know that the two new resources were added this week to help navigate the financial aspects of divorce and separation:

www.moneysmart.gov.au/life-events-and-you/life-events/divorce-and-separation/divorce-and-separation-financial-checklist

www.moneysmart.gov.au/tools-and-resources/calculators-and-apps/asset-stocktake-calculator

Hopefully these resources are going to make a real difference to people at a very stressful time in their lives.