Grounds for divorce

| 4 min read

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.

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.

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.

You need to have been married for at least one year

If you have not been, you must wait the full 12 months.

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.

Can I apply for a divorce?

You can apply for a divorce in Australia if either you or your spouse:

  • Regard Australia as your home and intend to live in Australia indefinitely, or
  • Are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce

You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

To apply for a divorce, you must complete an Application for Divorce and file it with the Court and pay the application fee. You may be eligible for a fee exemption or waiver.

If you apply for a divorce together with your spouse, it is a joint application and you and your spouse are joint applicants.

If you apply for a divorce by yourself, you are a sole applicant and your spouse is the respondent.

What a court considers in divorce applications

The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.

The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.

If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them

I married overseas - can I get a divorce in Australia?

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:

  • Regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
  • Are Australia citizens by birth or descent?
  • Are Australia citizens by grant of an Australia Citizenship?
  • Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file:

  • An English translation of it, and
  • An affidavit from the translator which
  • States his or her qualifications to translate
  • Attaches a copy of the marriage certificate
  • Attaches the translated marriage certificate
  • States that the translation is an accurate translation of the marriage certificate, and
  • States that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.
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