Divorce in Australia: Understanding The Eligibility

Good morning,

On what basis can I get a divorce

I continue to be asked this question by clients who confuse our system for divorce with what happens in other countries.

To be eligible to make an application for divorce in Australia you must consider Australia as your home and have continuously lived in Australia for the 12 months prior to your application. Once those conditions are met you are eligible to apply for a divorce.

In Australia we have a no-fault divorce system and the Family Law Act 1975 sets out the criteria for a divorce to be granted. In general terms the following conditions must be met:

1. You must have told your spouse that you consider the marriage over;
2. You must have lived separately and apart for 12 months prior to the application; and
3. There is no likelihood of you and your spouse resuming married life together.

An application for divorce may be made either as a joint or single application. The rules allow for parties to live in the same home as long as they remain separated. You may get together for a single short period as long as it is no more than 3 months. If you have a child under the age of 18 years the court must be advised how the child/ren will be cared and supported and will consider their needs when determining the application.

These are the only matters considered by the court when deciding an application for divorce. If you are living under one roof you will need to provide appropriate evidence of the separation. It should be noted that property applications can only be made, without obtaining the permission of the court, within the 12 months after the divorce. As it is often the case, after separation it becomes necessary for one party to leave the family home. Leaving the family home does not affect how the Court will determine property orders as the court recognises such circumstances.

As each situation is individual if you or someone you know needs further information, please do not hesitate in contacting me regarding divorce, property or parenting orders.

Regards,

Jeffrey
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