Legal Grounds and Requirements
Eligibility for Divorce
To be eligible for divorce in Australia, you must satisfy the following criteria:
- Either spouse must regard Australia as their home and intend to live in Australia indefinitely; or
- Be an Australian citizen by birth, descent, or by grant of Australian citizenship; or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Marriage Certificate
Your marriage certificate is an essential document in your divorce. If you were married overseas, you may need to have your marriage certificate translated if it’s in a language other than English.
Grounds for Divorce
Divorce in Australia operates under a no-fault system. This means the law doesn’t account for who’s at fault for the marriage failing. The only consideration is the irretrievable breakdown of the marriage.
What is Separation?
Separation is designed to prove that a marriage has broken down and justifies a divorce. It involves the parties to the marriage dissolving their domestic partnership and making an effort to live separate lives.
Separation vs Divorce
Separation and divorce share similarities. However, they differ in important ways for the legal process. While a separation must last at least 12 months to allow for a divorce, there’s no upper limit to how long a couple can remain separated. Consequently, a married couple’s separation date does not affect legal procedures like the time limit for property orders. For married couples, their divorce date sets the time limit for settling property matters. The law requires property settlements to be finalised within one year of a divorce.
Divorce is also handled through an established legal process. Separation doesn’t have a defined legal procedure. Couples must indicate their separation by showing evidence that they live separate lives.
Separation Requirements
To gain a divorce in Australia, one must show that the marriage has fully broken down beyond repair. This means proving both spouses have been parted for at least 12 months without hope of reunion. To establish your separation, there are several things you can do to ensure the Court recognises it accurately.
Clearly state the date when the separation occurred. This date would be when you inform your partner of your desire to separate.
Gather evidence that you have separated. Evidence may include:
- A formal statement declaring the date of separation and the circumstances surrounding it.
- Affidavits from friends or family to corroborate your claims of separation.
- Evidence of separate bank accounts or financial independence.
Couples can briefly reconcile over 3-month intervals while not resetting their original separation period, provided certain conditions apply.
