There are a number of misconceptions about divorce that persist, perhaps due to the depiction of divorcing couples in American film and television. In Australia, the Family Act of 1975 established no-fault divorce. This means that in our country, the only grounds for divorce is that the marriage has broken down, and that there is no reasonable likelihood that you will get back together. You must have been separated for at least twelve months and one day. If you have minor children, a court will only grant a divorce if proper arrangements have been made for them.

The granting of a divorce, however, does not involve the formalisation of these arrangements, or with maintenance payments, or the division of property. The divorce deals only with the dissolution of the marriage or de facto relationship. Separate applications must be made with regard to maintenance and property, and you also have the opportunity to make a parenting plan.

Are You Eligible for an Australian Divorce?

There are a few conditions that must be met in order for you to qualify for a divorce in Australia. First, either you or your spouse must consider Australia your home and intend to live here indefinitely, OR, you must be an Australian citizen by birth, descent, or by grant of Australian citizenship, OR, you must ordinarily live in Australia, and have done so for the twelve months immediately prior to filing for divorce.

Also, you must have been separated from your spouse or de facto partner for at least twelve months and one day before applying for divorce. It is possible to apply for a divorce under the understanding that you have been "separated under the one roof.” However, you will have to prove that you were actually separated during this time.

If you have been married less than two years, before applying for a divorce you must file a section 60I counselling certificate. In order to obtain this certificate, you must attend counselling with your spouse. If you are unable to meet this qualification, you must file an affidavit.

Points to Consider

A lawyer can advise you about the specifics of your case, but there are a few considerations to keep in mind:

• In any divorce where children are involved, it’s important to put the interests of the children first. Your lawyer may be able to help you work with your former spouse/partner to devise a cooperative custody agreement and parenting plan. Unless there are serious issues involved, this can be done straightforward, with as little stress for the children as possible.

• Now that same-sex marriage is legal in Australia, divorce is available for same-sex couples. In fact, some couples married elsewhere but are now residing in Australia, have already filed for divorce

• Factor in cost; there is a fee for filing for divorce (current fee schedule available here). Your lawyer may be willing to charge either a fixed fee, or bill by the hour.

Annulling a Marriage

Annulling a marriage is different from getting a divorce.  A divorce is seeking to end a marriage whereas an annulment is seeking the marriage be voided from the beginning. You can annul a marriage where there was some kind of misrepresentation or where there were not lawful grounds at the time of the marriage.  This can include prohibited relationships, where a spouse party was already married to someone else (called polygamy), where there was no consent to the marriage or where a party was not of a marriageable age.

Many Legal Layers of Divorce

Divorce is an emotional and volatile situation. In some cases, the divorce may be amicable, but there are many layers to sort through when dissolving a marriage.

• Child custody – a family lawyer will specialize in divorce, but also have experience in custody cases. Whether for shared custody or sole, it is important to ask the right questions from your family lawyer and discuss realistic expectations on the outcome of a custody case. Whenever possible, divorce lawyers in Australia will urge parents to work with shared custody or come to an agreement before heading to the courts. The benefit of the child is always first and foremost in the divorce lawyer’s mind.

• Property Settlement – Never make assumptions about property entitlement. It is naïve to assume your former partner will come to terms fairly and a good lawyer will work to ensure your best interests are fairy represented. 

• Settling financial matters – whether it is a binding financial agreement before marriage, (pre-nuptial agreement,) or executing binding financial agreements made during the marriage, a family lawyer is your best ally. Financial agreements can be tricky to sift through independently and there are many misleading "how to” sites on the Internet that can work against you. Using the services of divorce lawyers in Australia will help ensure you have a fair and beneficial settlement. 

If you are going through a divorce or need an annulment, know that you have readily available assistance at your disposal. Contact a divorce lawyer in Brisbane, Melbourne, Sydney or Perth today!