Last Updated 1 August 2016
The day after the 12-month separation period has expired, an application for divorce may be signed and filed in the Family Court.
Either party may file the application, no matter who left who or who wanted the separation. The parties may also file a joint application. Normally an application for dissolution of marriage will be heard about eight weeks after the filing of the application.
Requirements to grant a divorce
In addition to the requirement that there has been an irretrievable breakdown of the marriage (evidenced by at least 12 months separation) with no chance of reconciliation, a court will not grant a divorce unless convinced that:
- the parties are sufficiently connected to Australia
- proper arrangements have been made for the care of any children who are under 18 years of age
- reconciliation has been considered by the parties where the application is made less than two years after the marriage.
Sufficient connection to Australia
The Family Court cannot grant a divorce unless it is established that either party to the marriage is:
- an Australian citizen
- domiciled (permanently living) in Australia
- ordinarily resident in Australia and has been residing in Australia for at least one year prior to filing the application (s 39(3) Family Law Act 1975 (Cth) (Family Law Act)).
Proper care for children under 18 years
Before granting a dissolution of marriage, the court is required to be satisfied that:
- proper arrangements have been made for the care, welfare and development of the children of the marriage
- there is a good reason for the divorce being granted, although not completely (s 55A(1) Family Law Act).
For the purposes of divorce, children of a marriage include children who are ex-nuptial children of either party (i.e. born before marriage), a child adopted by either party or a child who is treated by the husband and the wife as a child of their family.
The divorce application requires information to be completed about the adults caring for or living with each child, the relationship between the children and an absent parent, the nature and frequency of time spent with the absent parent, the accommodation details, the means by which the parties support, maintain and supervise the children, child minding (including arrangements made if the parent who has the full-time care of the child is working), present education and progress, future plans for education and details of the children’s health.
Where the parties are in dispute about the arrangements for the care of the children, the court may decline to issue a divorce until the arrangements have been finalised. However, if there are current proceedings for the arrangements for the children, it is unusual for the court not to make the divorce order.
Divorce within two years of marriage
If the parties seeking a divorce have been married for less than two years at the time an application for dissolution is filed, the court must be satisfied that the parties have considered reconciliation.
The application for divorce must be accompanied by a certificate from a counsellor stating that the parties have considered reconciliation with the assistance of a marriage counsellor or some other approved marriage counselling organisation (s 44(1B) Family Law Act). The certificate is part of the divorce application and must be signed by the counsellor with whom the parties considered reconciliation.
When the court is satisfied that special circumstances exist to warrant the hearing of the application for dissolution even though the parties have not considered a reconciliation, the requirement of the certificate may be dispensed with (s 44(1C) Family Law Act). If one party refuses to attend counselling, the counsellor can still provide a certificate stating this fact, and it is not a bar to the divorce being granted.
Once the court is satisfied that a divorce should be granted, it will issue a certificate of divorce one month after the divorce is granted. This is when the divorce order takes effect. The one-month delay allows time for the divorce order to be challenged if it has been obtained improperly. The parties can only remarry once the divorce order takes effect.
If the parties reconcile after a divorce is granted and before it takes effect, they must make an application to the court to have the order set aside, otherwise the order will take effect automatically after one month, and the marriage will be dissolved.