Applying for a Divorce

Australian law operates on the principle of no-fault divorce.  This means that when a couple or an individual applies for a divorce a Court will not consider the reasons why the marriage ended.  There is no legal need or reason for either of you to explain or explore the potentially emotional and complicated reasons for the breakdown of your marriage.

The only condition of a divorce being granted in Australia is whether or not a marriage has broken down irretrievably.  In order to show to the Court that a marriage has broken down irretrievably a couple must have been separated for at least twelve months and one day.

What if I am separated but have continued living in the same home as my ex-spouse?

‘Separation under one roof’ occurs when a couple is separated but has continued living under the same roof.  If a couple is separated, but still living together, then they will need to prove to the Court that they were separated during this time. Affidavits will need to be provided to demonstrate to the Court you are separated.  We recommend you obtain assistance when drafting Affidavits to ensure that you include all of the information the Court will require.

What if I separate from my spouse and then after a period of time resume our relationship before separating again?

If you resume co-habiting with your spouse for a period of three months or more, then you must wait a further twelve months from the second separation before you are entitled to file an application for divorce.

What do I do if I want to file for a divorce but my spouse does not agree?

An application for divorce can be filed as a joint or a sole application.  This means that even if your spouse does not agree, or does not participate in the application process, it is possible for you to apply and ultimately be granted a divorce order.

Does getting a divorce affect anything else that I should be aware of?

It is important to be aware that proceedings for property settlement and spousal maintenance must be commenced within one year of receiving your divorce order.  If you wish to commence proceedings after this time, you must make an application to the Court for approval to commence proceedings "out of time".  This approval can be difficult and costly to obtain and you cannot assume any extension of the time limit will be granted.

If you have separated and are considering getting a divorce or have been served with Court papers about a divorce, we would encourage you to seek legal advice as soon as possible.

Please do not hesitate to contact our office on (07) 4963 2000 or via our online contact form should you have any queries.