Last updated 27 April 2022
A dissolution of marriage, or divorce, can be granted where:
- the parties were validly married and
- the parties have a sufficient connection to Australia and
- the marriage has broken down irretrievably and
- proper arrangements have been made for the care, welfare and development of any children of the marriage under 18 years of age.
A divorce in Australia is simply the legal termination of the marriage. Other matters, such as maintenance, the distribution of property or matters affecting the children are usually dealt with in separate court proceedings.
Grounds for divorce
The only ground for divorce is that the marriage has broken down irretrievably (s 48 Family Law Act 1975 (Cth) (Family Law Act)). This ground is established if the court is satisfied the parties have been separated for a continuous period of not less than 12 months before the application for divorce is filed. It is important to note that parties can separate and still live in the same house (see below). The court must also be satisfied that there is no reasonable likelihood of cohabitation being resumed (i.e. no likelihood of the parties getting together again).
The 12 months of separation can be deemed continuous even if, after separation, the parties resumed living together (cohabiting) on one occasion for a continuous period of three months or less. The 12-month period of separation, however, does not include any period of cohabitation. Further, a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial (s 50 Family Law Act).
A divorce order cannot take effect if one of the parties to the marriage has died.