Deciding to end a marriage is an incredibly difficult decision and can cause both parties a considerable amount of emotional stress.
One of the most common misconceptions in family law is that a “Divorce” includes your property settlement and/or parenting arrangements for your children. The Application for Divorce is in fact entirely separate to these two matters.
An Application for Divorce is the administrative process whereby you dissolve the marriage and request the Court to recognise the end of the marriage.
The Court will make a Divorce Order if they are satisfied that the marriage has irretrievably broken down and that the parties have no reasonable likelihood of reconciling. This is established by evidence that the parties have lived separately or apart for a continuous period of 12 months immediately before the filing of the application.
Another misconception is that it is relevant if one party is ‘at fault’ or the reason that the marriage has broken down. Prior to 1975, the parties to a marriage had to provide grounds for an application for divorce. This required evidence that one party caused the breakdown of the marriage – this included, adultery, habitual drunkenness and insanity. Today, this is no longer required. Following the introduction of the Family Law Act in 1975, Australia established a principle of ‘no-fault’ divorce. That is, the Court does not consider the reasons, if any, as to why the marriage ended but rather that there is no chance of reconciliation.
Who can apply for Divorce?
To apply for Divorce in Australia either one or both of the parties must either be:
- Born in Australia or are an Australian Citizen by descent; or
- An Australian citizen by grant of an Australian citizenship; or
- Be lawfully present in Australia and plan to continue living in Australia for at least the last 12 months (evidence I required to support this).
What does ‘separation’ mean?
To apply for a Divorce the parties to the marriage must have been separated for at least 12 months.
Separation may occur:
- From the action or conduct of one of the parties
- Under the one roof
Separation does not only mean ‘physical separation’. The Court in Pavey  held that separation involves the ‘breakdown of the marital relationship… where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention’.
For example, the parties in Campbell & Cade  were held to not have been ‘separated’ even though the husband had left the matrimonial home. The couple still acted as a married couple by maintaining a sexual relationship, attending social functions and operating a joint bank account.
There are sometimes instances where one party to a marriage is unaware that their spouse has formed an intention to separate as it has not been communicated to them. The Court in Falk  established that there is a requirement to communicate one’s intention to sever the marital relationship. So, whilst a party to marriage may have formed the intention to separate, the clock does not start ticking until they communicate this to the other party.
Separated ‘under one roof’
Whilst the clearest form of separation is one party moving out of the matrimonial home, the Court acknowledges that not every marriage has the financial means to do so. The Court as a result recognises that a couple can be separated ‘under one roof’.
For the Court to accept that a couple has been separated ‘under the one roof’ they must consider evidence regarding the state of the marital relationship before and after the ‘separation’. To do this, the Court requires evidence from a corroborating witnesses to establish that the couple were indeed separated while they were still living together under the one roof
What happens if I resume cohabitation with my partner within those 12 months?
The Court encourages couples going through a difficult time in their marriage to attempt to reconcile. As a result, the Court does not want to deter parties from resuming cohabitation once separated.
If ultimately the couple separates again after trying to work things out in their marriage, the clock does not restart if this cohabitation was for less than 3 months. If a couple resumes cohabitation for more than 3 months, the 12-month separation clock restarts.
Children of the marriage
If the parties to a marriage have children aged under the age of eighteen, the Court will only grant a Divorce if it is satisfied that proper arrangements have been made for them.
When is the divorce final?
The divorce order takes effect one month after it is made. After this time, the parties to the divorce are able to remarry other people.
How do I apply for divorce?
One can apply for a divorce by themselves (sole application) or together with the other party to the marriage (joint application).
There are different obligations in either case:
- Sole Application
The person making the sole application is the Applicant and the other party to the marriage is the Respondent. The Respondent does not need to sign the Affidavit for filing the Application, but the Applicant must personally serve the application on the Respondent and pay the filing fee.
Court attendance is not required if there are no children of the marriage.
Court attendance is required by the applicant if there are children under the age of 18 years.
- Joint Application
Both parties are known as Joint Applicants and they must both sign the Application. If you make a joint application, the requirement to personally serve the other party is dispensed with and generally parties share the cost of the Court filing fee.
Court attendance is not required if you file a joint application.