Understanding the Legal Landscape of Divorce in Australia

Understanding the Legal Landscape of Divorce in Australia

Divorce is a challenging and emotional journey, but understanding the legal process can make it a bit more manageable. In this comprehensive guide, we’ll explore the key aspects of the Australian divorce system, providing insights and advice to help you navigate this difficult time.

The No-Fault Divorce System

Under the Family Law Act 1975, Australia adopts a no-fault divorce system. This means that couples do not need to provide a reason for their separation other than the fact that their relationship has irretrievably broken down. This approach simplifies the divorce process, as the court does not require any evidence or reason for the breakdown of the marriage, focusing instead on the fact that the marriage has ended.

Divorce Order vs. Decree of Nullity

In Australia, there are two ways to legally end a marriage: through a divorce order or a decree of nullity. A divorce order is applicable when a marriage has irretrievably broken down, and the court is satisfied that the couple has been separated for at least 12 months. On the other hand, a decree of nullity is sought when one wishes to declare the marriage void, often in cases where the marriage was not legally valid from the start.

Filing for Divorce: The 12-Month Rule

To file for a divorce, couples must have been living separately for at least 12 months. This period is crucial as it provides evidence to the court of the marriage’s irretrievable breakdown. However, if the marriage lasted less than two years, couples are required to provide a certificate from a family counsellor, confirming that they have attempted reconciliation. This requirement can be waived only under special circumstances.

Living Together While Separated

Interestingly, in Australia, couples can be considered ‘separated’ even if they continue to live under the same roof. This situation often arises due to financial constraints, the presence of children, or cultural and religious reasons. In such cases, an affidavit is required to confirm the circumstances of the separation, detailing how the couple has lived separate lives despite sharing a residence.

Court Proceedings in Divorce

When a divorce application is filed, the court’s role is to determine whether the relationship has indeed broken down irretrievably. If it’s a joint application, the couple is not usually required to attend the court hearing, unless there are specific circumstances like a short marriage duration or separation under the same roof that need clarification.

Post-Divorce Considerations

After a divorce is granted, any proceedings related to property division or spousal maintenance must be initiated within 12 months. This time frame is crucial for ensuring that financial matters are settled promptly. However, with mutual consent, settlements can still be pursued after this period.

Impact on Wills and Estate Planning


A significant aspect often overlooked in divorce is its impact on wills and estate planning. Post-divorce, your former partner is treated as if they have predeceased you in terms of your will. This means they will not benefit from your estate unless explicitly stated otherwise in the will. Additionally, if your former partner is named as the executor of your will, their appointment is considered null and void post-divorce.

Divorce in Australia is governed by a system that emphasizes the irretrievable breakdown of the marriage rather than the reasons leading to it. Understanding these legal nuances can help make the process less daunting. Remember, it’s always advisable to seek professional legal advice to navigate the complexities of divorce law and ensure your rights and interests are protected.

 Navigating through a divorce can be a challenging journey, but with the right information and support, it can be a path to a new beginning. Stay informed, seek guidance, and take each step with confidence as you move forward into the next chapter of your life. Schedule a complimentary consultation with Mendis & Gibson Lawyers today. Our team of compassionate and experienced legal experts is ready to understand your unique situation and guide you through the necessary steps ahead. Let us assist you with empathy and expertise