Can I get a divorce?
This article will be useful reading to all those who are certain that their marriage is over but don’t know whether they can get a divorce. Even if you and your partner are agreed, you will need to convince the court that you are entitled to a divorce. In order to do that, you need to fulfil the conditions outlined in this article. Whilst we have made every effort to include as much information as possible, we cannot cover every case.
1. You need to be legally married
Even if you have a marriage certificate, you are not legally married if, at the date of your marriage:
- One of you was still legally married to someone else
- One or both of you was/were under the age of 16
- One or both of you married as a different gender from that on his/her birth certificate (e.g. sex change operations etc.), though the law is in the process of changing on this issue
- You were closely related to each other, including certain step-relationships.
The refusal or inability to have sex since the marriage, sexually transmitted diseases or pregnancy by another man and invalid consent (forced marriage, mental illness etc.) at the time of the marriage could also mean that the marriage is potentially invalid.
2. The court needs to have jurisdiction
This is a tricky are, however, broadly speaking, if both of you are normally resident in Australia or have last lived together as husband and wife in Australia, the court will have jurisdiction.
3. You need to have been married for at least one year
If you have not been, you must wait the full 12 months.
4. The marriage must have broken down irretrievably
You need to declare that it has.
Prior to the Family Law Act 1975, one of 5 conditions must have also been proved. They were: adultery, Unreasonable behaviour, desertion, 2 years separation and consent and 5 years separation, however, you will be glad to know, this is not the case today.
What do I do next?
You can either instruct a solicitor to deal with your divorce, or do it yourself.
I may not be legally married, what can I do?
Although not always necessary, it’s always advisable to get a declaration from the court that your marriage is ‘null and void’ – this is called an ‘annulment’.
What is a judicial separation?
The main difference between a judicial separation and a divorce is that a judicial separation does not ‘dissolve’ the marriage. You cannot therefore, remarry. The conditions for obtaining a judicial separation are very similar to those for divorce and, as in a divorce, you can ask the court to make orders about your finances and/or children. | 
