This article explains the divorce requirements that must be met in order to file for divorce in Australia. Divorce is essentially the legal dissolution or termination of a marriage and all Australian states and territories have the same process. The competent court for filing divorces is the Federal Circuit and Family Court of Australia (FCFCA), which handles all divorces in Australia under Part VI of the Family Act 1975.
Can I apply for a divorce myself, or do I need a lawyer?
You can file the divorce papers yourself, or you can hire a lawyer. However, we strongly recommend that you seek legal advice before submitting your application. This is especially true if you have children or share property with your partner.
The no-fault principle is one of the divorce requirements
Divorce in Australia follows the no-fault principle. This means that, in considering your petition for divorce, the court does not need to determine who is “at fault” for the breakdown of the marriage, nor does it need to know the reasons for the breakdown of the marriage. To do. The 1975 Family Law established no fault as one of the conditions for divorce.
Irretrievable breakdown requirement
In fact, the only legal basis or justification that the Family Act 1975 requires for a petition for divorce is that the marriage is irrevocably broken, which is another divorce requirement in Australia. If you have been legally separated from your partner for at least 12 months with no reasonable prospect of reunion, we consider this irrevocable separation requirement to be met.
Legally recognized marriage
Another element of the divorce requirements is that your marriage must be legally recognized in Australia before a court has the jurisdiction or authority to grant your divorce application. Proving whether a marriage took place in Australia is fairly straightforward, but if the marriage took place abroad it becomes more complicated and requires additional evidence and steps. will need a copy of the marriage certificate. This need not be an original, notarized or certified copy.
Australian citizenship or residency requirements
In addition to being legally married in Australia, you or your partner must be Australian citizens or meet at least one Australian residency requirement. One of these residency requirements is that you or your partner must have lived in Australia continuously for at least 12 months before applying.
Determining whether you or your partner have Australian citizenship
If either you or your partner is an Australian citizen, the court has the jurisdiction or power to grant your petition for divorce, regardless of birth, parentage or naturalization. If you were not born in Australia, you may be required to provide proof of citizenship. e.g; Passport.
Residency requirements if neither you nor your partner have Australian citizenship
Even if neither you nor your partner are Australian citizens, the court may have jurisdiction to grant your application if either you or your partner meets at least one of the various residency requirements. I have. If either you or your partner is a legal resident of Australia, you can meet any of these residency requirements. Another requirement can be met if you or either of your partners have lived in Australia continuously for at least 12 months before filing for divorce. are considered permanent residents and intend to reside in Australia indefinitely, further conditions may be met.
What if my marriage took place overseas?
Foreign marriages cannot actually be registered in Australia, but a foreign marriage certificate is nonetheless considered proof that the marriage took place. You need to have your foreign marriage certificate translated into English by a certified translator. Then both the marriage certificate and its translation must be attached to the affidavit. An affidavit is a written statement submitted to the court as evidence.
When will an overseas marriage be recognized in Australia?
In general, overseas marriages are recognized in Australia if they are recognized as valid in the country where the marriage is concluded. However, if the marriage is concluded in Australia, the marriage must be recognized as valid under Australian law.
When won’t an overseas marriage be recognized in Australia?
If either you or your partner were validly married to someone else at the time of the relevant overseas marriage, the overseas marriage will not be recognized in Australia. Furthermore, if either you or your partner are not of legal marriageable age under Australian law, you will not be permitted to marry abroad. Another scenario is that you and your alien marriage partner are very closely related in a biological sense, with one of you being an ancestor, descendant, or sibling of the other. Scenarios are where genuine consent to marry abroad is not deemed to have been obtained due to fraud, coercion, mistaken identity, mental incompetence or lack of understanding.
Counselling certificate required when you’ve been married less than two years
If you have been married to your spouse for less than two years, you must also submit a consultation certificate at the time of divorce. To receive a counseling certificate in such cases, you and your partner must have attended a counseling session prior to applying. In addition, the possibility of settlement should be considered during this consultation process. This essentially means that we should have discussed the possibility of a reunion.
What if I’m separated from my partner, but we’ve still been living under the same roof?
One possible scenario when filing for divorce is if you and your partner are separated but have lived in the same household for any of the 12 months prior to filing. In this scenario, the court will seek additional evidence in the form of affidavits. For joint applications, both you and your partner must submit such affidavits.
Third party affidavit required when you’ve been separated but still living under the same roof
If you are separated from your partner but have lived in the same house for part of the last 12 months, you must ask a third party to complete the affidavit. A third party affidavit is intended to prove or corroborate your own affidavit. This affidavit is required whether you are filing for divorce alone or jointly with your partner.