Here are the key rules and requirements for getting a joint divorce in Australia:
1. The Grounds for Divorce (Irretrievable Breakdown)
- The only ground for divorce in Australia is the “irretrievable breakdown of the marriage.”
- To prove this, you must demonstrate to the court that you and your spouse have been separated for a continuous period of at least 12 months and 1 day immediately before applying for a divorce.
2. Separation Under One Roof
- It is possible to be separated while still living in the same home. This is often referred to as “separated under one roof.”
- If you are applying for a divorce and have been separated under one roof for any part of the 12 months, you must file a separate affidavit with your application.
- This Affidavit needs to provide evidence to the court that you have genuinely separated, such as changes to sleeping arrangements, a division of household duties, separate finances, and a lack of shared social life or sexual relations.
3. Jurisdiction (Who Can Apply)
At least one of you must meet the following residency requirements:
- Be an Australian citizen (by birth, descent, or grant of citizenship).
- Live in Australia and regard Australia as your home.
- Have lived in Australia for at least 12 months immediately preceding the filing of the application.
4. Children of the Marriage (Under 18)
- If you have children under the age of 18, the court will only grant the divorce if it is satisfied that “suitable arrangements” have been made for them.
- This does not mean you need a formal court order for parenting arrangements. A parenting plan or informal agreement between the parents is often sufficient.
- The application form requires you to provide details about how you are managing the children’s living arrangements, financial support, education, health, and their relationship with both parents.
5. Joint Application Specifics
- No Service Required: The most significant advantage of a joint application is that there is no need to “serve” the divorce papers on the other party, which can reduce conflict and legal costs.
- Both Parties Sign: Both spouses must sign the application form and the Affidavit for eFiling (Divorce). They can different times and in front of other witnesses (such as a Justice of the Peace or a lawyer).
- No Court Attendance (Usually): If you file a joint application and there are no children under 18, you are generally not required to attend a court hearing. The court will review the documents and decide in your absence. If there are children under 18, the court may require one or both parties to attend a short hearing.
6. Marriage of Less Than Two Years
- If you have been married for less than two years, you are required to attend marriage counselling and obtain a certificate from a family counsellor before you can apply for a divorce.
- The court may waive this requirement in exceptional circumstances, such as cases involving family violence. You would need to file an affidavit explaining why counselling was not possible.
The Process
- Meet the Requirements: Confirm you meet all the eligibility criteria, especially the 12-month separation period.
- Gather Documents: You will need your official marriage certificate (not a ceremonial one) and any other relevant documents, such as citizenship or visa information. If the marriage certificate is not in English, you must also provide a certified translation.
- Complete the Online Application: The application is filed online through the Commonwealth Courts Portal.
- Sign and File: Both parties sign the documents and file them with the court, along with the required filing fee (or an application for a fee reduction if eligible).
- Court Review and Hearing: The court reviews the application. A hearing date is set (usually 2-3 months after filing).
- Finalisation: If the court is satisfied, the divorce order will be made. The divorce becomes final one month and one day after the order is granted.
