When a marriage breaks down, parties can make an application to the Court to terminate the partnership and obtain a divorce.
Australia has a “no fault divorce” system, which means that parties are able to apply for a divorce without having to explain why the marriage has ended.
Since the amendments to the Marriage Act in 2017 (which legalised marriage in Australia between two persons of marriageable age, regardless of their gender), same-sex couples who have wed are also able to apply for a divorce.
Parties can apply for a divorce if:
- either of them regard Australia as their home, are Australian citizens, or have lived in Australia for at least 12 months; and
- they have been separated for at least 12 months, and there is no likelihood of a reconciliation.
It is possible for parties to be recognised as separated whilst remaining under the same roof. However, in this situation, additional steps will need to be taken to satisfy the Court that the marriage has irretrievably broken down.
Both parties do not have to agree to get a divorce, and one party can apply for a divorce on their own.
Parties are not required to attend the divorce hearing unless:
- one party has filed a sole application and there is a child involved under the age of 18 years;
- the respondent files a response opposing the application; or
- there have been issues in serving the respondent with the application.
Provided that all of the requirements for a divorce are met, the Court will grant the divorce at the hearing. The divorce will take effect one month and one day after the hearing.
It is important to note that a divorce may be granted before agreement has been reached about specific parenting or property matters arising from the separation. You may be barred from filing a property settlement application with the Court after one year has passed from the date of the divorce being granted.