Are you eligible for Divorce? 

The Family Law Act establised "no fault divorce". The only ground for divorce is the irretrievable break down of the marriage; that is, there is no likelihood that you will get back together.

You must be separated for at least 12 months and one day before an application can be made. It is possible to live together in the same home and still be separated - “separation under one roof”. If this applies the applicant and a friend need to file affidavits with the details of the separation.

An application can be made by one party (sole) or by both (joint).

If there are children under the age of 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. Details must be included in the application and if it is a sole application the applicant must attend the court hearing. If it is a joint application neither party is required to attend court. If there are no children of the marriage under 18 and no other issues neither is required to attend.

If it is a sole application it must be personally served on the other party.

If you are served with an Application for Divorce it can be opposed by filing a Response. You must appear in person. But a divorce can only be opposed where: there has not been 12 months separation as alleged in the application, or the court does not have jurisdiction.

If you want the divorce granted but disagree with the facts in the Application, a Response can be filed setting out the facts you disagree with. You should attend the divorce hearing. If you need to file a Response you must do so within 28 days of being served with the Application.
 
If you have been married less than two years you must have either: attended counselling to discuss the possibility of reconciliation, or you must seek permission of the Court to apply for a divorce.

To apply, whether married in Australia or not, you or your spouse must: regard Australia as your home and intend to live here indefinitely, or be an Australian citizen by birth, descent or by grant of citizenship, or ordinarily live in Australia and have for 12 months.

You should not plan to remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing, however, you should not assume the divorce will be granted at the first court hearing. For example, you may need to provide more information.

The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangments about these issues you can: make an agreement with your spouse and file it with a court, or seek orders from a court, where you and your spouse cannot reach agreement. 

If you want to apply for maintenance or property division, you must file a separate application within 12 months of the date that the divorce becomes final. 
 

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