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In Australia, under the Family Law Act 1975 parties do not need to provide any reasons for divorce other than that the relationship has broken down irretrievably. Therefore, the court does not need to know the reason for the divorce, just that the marriage has broken down irretrievably.
The end of a marriage occurs by an application for a divorce order or by decree of nullity of marriage. A divorce order is based on the marriage breaking down irretrievably and the Court is satisfied the parties have been separated for at least 12 months. A decree of nullity is an application seeking declaration that the marriage is void.
An application for a divorce order cannot be filed until you and your partner have been living separately and apart for at least 12 months.
If you have been married for less than 2 years, in support of your divorce application, you must provide a signed certificate from a family counsellor that confirms you have taken steps to reconcile. If you have not attended counselling and have not provided the signed certificate, then the Court will need to be satisfied that there are special circumstances for not doing so.
To satisfy the test for separation, you do not necessarily have need to physically have lived in separate homes for the minimum 12-month period. Often this happens when there are children of the relationship, or because of religious or cultural reasons.
If you are living in the same home as your former partner, you will need file an affidavit confirming the circumstances of your separation.
As a rule, divorce applications must be served by hand or by post to your former partner or their legal representative. However, if you have made reasonable attempts to serve the application to your partner, but their whereabouts cannot be found or they are avoiding service, you may apply to the Court for an order dispensing with service or substituting another way of serving the application.
In these instances, applying to the court for substituted service or dispensation of service will require a strong argument. As such, it is recommended you seek legal advice, especially as the Court will require an affidavit and may also require oral evidence from you. If the Court is satisfied, they may approve substituted service by way of email or social media.
The Court will assess and determine whether the relationship has broken down irretrievably and may subsequently grant the divorce.
If the application for divorce is a joint application, then the parties are not required to attend the Court date. However, attendance is advisable if any additional information or material is required to explain circumstances of the case, such as separation under the same roof or if the marriage is of less than 2 years.
When the Court grants the divorce order, the order will be effective 1 calendar month after the grant date.
If there is property involved in the relationship or you require spousal maintenance, you must institute these proceedings no longer than 12 months after the divorce order takes effect.
Settlements after the 12 months however may still be instituted with the consent of both parties to the divorce.
If you have an existing Will, your former partner will be treated as though they have predeceased you. This means they will not receive any benefit from your Will unless a clause exists in the Will stating otherwise. Further, if your former partner is the listed executor of your Will, the appointment of them as executor is taken to have been omitted.
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