Divorce in Australia is governed by federal law and is approached as a largely administrative process, provided certain thresholds are met. To begin divorce proceedings, one of the spouses must have a sufficient connection to Australia at the time of filing. This can be established by citizenship, domicile, or by having lived in Australia on an ordinary and habitual basis for at least the preceding year. If a similar application is already on foot overseas, an Australian court may decline to proceed, but only where Australia is considered a clearly inappropriate forum.
The Ground for Divorce
Australia operates under a no-fault divorce system. The sole ground for divorce is the irretrievable breakdown of the marriage. This is proven by the parties having lived separately and apart for a continuous period of at least 12 months immediately before filing. The court will refuse the application if it considers there is a reasonable likelihood that the couple will resume their relationship.
Separation and Resumption of Cohabitation
Separation does not require the parties to live in different homes. What matters is the breakdown of the marital relationship itself, which involves the intention of one or both spouses to end the relationship, followed by conduct consistent with that intention. Living under the same roof after separation is permitted, but applicants should be prepared to provide detailed affidavit evidence—and often corroborating witnesses—to demonstrate that the marriage has in fact ended. Cooking, cleaning and household arrangements are not assessed by any formula; rather, the court will compare the state of the relationship before and after the alleged separation.
In limited circumstances, a brief period of reconciliation does not restart the 12-month clock. If cohabitation is resumed for less than three months and then separation continues, the periods before and after may be added together.
Children and the Divorce Order
A divorce order takes effect one month after being made, unless the court delays the date due to the possibility of an appeal or shortens it in special circumstances. However, the order cannot take effect until the court is satisfied proper arrangements have been made for any children under 18. If necessary, proceedings may be adjourned until further information—such as a family report—is obtained or interim orders are made.
Consequences of Divorce
A divorce may affect a person’s will or their entitlement under a spouse’s will, depending on the laws of each state and territory. Importantly, parties only have 12 months from when the divorce takes effect to initiate property settlement or spousal maintenance proceedings, unless the other party consents or the court grants permission.
For these reasons, it is often wise to monitor time limits closely and obtain legal advice early to avoid unnecessary strategic disadvantages.
Conclusion
Divorce is a significant change, but it need not define the journey ahead. By understanding the divorce process in Australia and seeking professional guidance, you can protect your rights and plan for a brighter future.
If you’re considering divorce or have questions about the process, contact Shore Lawyers today. Our experienced team is ready to support you every step of the way.
