What is divorce
Divorce is the official ending of a marriage.
The only legal requirement for getting a divorce is the ‘irretrievable breakdown’ of the marriage. This is proven by the married couple being separated for 12 months with no likelihood of getting back together. When applying for a divorce, your partner does not have to agree, and the law does not decide who is at ‘fault’ for the marriage breakdown. When the divorce becomes final, you are free to remarry.
An Application for property settlement can be filed with the Court any time after separation, but must be filed within 12 months of a divorce or two years of the breakdown of a de facto relationship. Otherwise you may forever lose your rights to file for property settlement with the Court. You may be able to ask the Court for permission to file your application out of time, but it is not guaranteed the Court will give you leave (permission) to do this.
Getting a divorce
You cannot remarry without a divorce. Staying married may affect your rights and responsibilities when dealing with financial matters, Wills and Estates.
To apply for a divorce at the Federal Circuit Court, you or your ex-partner must:
- be an Australian citizen; or
- live in Australia and consider it your permanent home; or
- normally live in Australia and have lived here for at least 12 months before applying for a divorce; and
- have been separated for 12 months.
You can still apply for a divorce if you were married overseas, or if you do not know where your partner is, as long as you live in Australia.
Arrangements involving children when you divorce
The Court will need to make sure proper arrangements have been made involving children before allowing a divorce to proceed.
The Court will want to know:
- where the children will live;
- how they will be financially supported;
- about their health and education; and
- how they will continue to maintain a relationship with both parents and other important people in their lives.
Getting back together for a short time
You can get back together for up to 3 months without restarting the 12-month separation period.
For example, if you are separated for 4 months, get back together for almost 3 months and then separate again for 8 months, you will be considered to be separated for a total of 12 months. But, if you were back together for 4 months, only the most recent 8 months would count as the separation period.
Separation under the one roof
After separating, one person may move out of the home, or you may be still living at home together, but leading separate lives. This is called ‘separation under the one roof.’
You may have to prove these living arrangements to agencies such as Centrelink. When deciding if you are ‘separated under the one roof’, they will consider whether:
- you sleep together;
- you have sex or sexual activity;
- you share meals and domestic duties (in a different way to when you were married);
- you share money and bank accounts; and
- your family and friends think of you as separated.
No single factor is conclusive. Get legal help if this applies to you and you want a divorce.
Divorce and short marriages
If you have been married for less than 2 years, you can get divorced only if you and your partner agree to counselling, or under special circumstances. If your partner refuses counselling, you can still get divorced. You should get legal advice if this applies to you.
Applying for a divorce
You can apply for a joint Application for a divorce (ie together) or on your own (sole application) through the Federal Circuit Court.
If making a sole application, you must ‘serve’ the other person with the application. This means giving the other person the divorce paperwork so they know about the Court proceedings. You must complete certain forms proving the other person has been ‘served’. You cannot serve your former partner personally, but you can by mail.
Applying for a divorce online
You can now apply for a divorce online through the Federal Circuit Court. To apply online you will need to register for access to the Commonwealth Courts Portal.
If you need to file documents to support your divorce they can be eFiled on the Commonwealth Courts Portal.
Fees and costs
You will have to pay a court filing fee when applying for a divorce. You can apply to the Court to have this reduced if you hold a Government concession card or can prove you are experiencing financial hardship.
Going to Court
If you are making a joint or sole Application for divorce, and there are not any children under 18 years’ old that were part of the family before separation, then you do not have to go to Court.
If you are making a sole application and there were children under 18 years’ old that were part of the family before separation, you must go to Court, unless there are special circumstances.
What happens at Court?
The Court Order for divorce is granted in 2 steps.
If you meet all the requirements and the Court is satisfied that proper arrangements have been made for any children from the relationship, then a Court Order will be made. This is a short-term Order, and is not a final divorce.
The divorce Order usually becomes final 1 month and 1 day after it is made, unless there is a good reason why the Court should not grant the divorce in that time. The date when the divorce Order becomes final is the actual divorce date.
The Court can order a shorter waiting period between the 2 steps in exceptional cases.
A copy of the divorce Order will be mailed to you. You should keep it in a safe place as this is your proof of divorce.
You should allow several months from the time you file for divorce to the actual date of divorce. It may take longer if there are problems with your Application.
You can only remarry once your divorce Order becomes final. When planning to remarry, be careful not to set your wedding date too close to the date when your divorce Order is expected to be finalised. If there is a delay, you will not be able to remarry until any issues are resolved and the divorce is granted. It is an offence to marry another person if you are already married.
Disputing a divorce Order
You may not want to get divorced because you think the marriage is not over or for religious reasons. However, this is not sufficient ‘grounds’ (reasons) for opposing a divorce Application.
Under the law, the only ground is ‘irretrievable breakdown of the marriage’. If your spouse wants a divorce, and you have been separated for a year or more, the Court will grant the divorce. You do not have to agree to the divorce or sign anything, but the divorce Order will still be made.
You can suggest relationship counselling, but your spouse does not have to agree. A Family Relationship Centre or the Family Relationship Advice Line may be able to help.
You can only oppose a divorce Order if:
- you have not been separated for 12 months (as alleged in the Application) or;
- there is no Court jurisdiction.
If you do not want a divorce to be granted, you must file paperwork with the Court and appear at the Divorce Hearing to explain why you want the Application dismissed.
If you want the divorce granted, but disagree with the facts in the Application for Divorce (eg the birth dates or details about the children are incorrect) you will need to file paperwork with the Court and attend the Divorce Hearing to explain.
If you are unsure about whether your marriage is legal, you can apply for a nullity (Annulment) instead of a divorce, declaring the marriage legally invalid. Get legal advice before applying.
Time limits for dividing your property
There are strict time limits to apply for a property settlement under the Family Law Act. You must apply within 1 year from the date your divorce Order becomes final.
Changing or making your will
Separation and divorce from your ex-partner does not have an effect on your Will. If you have not updated your Will, your ex-partner can inherit any property you left to them.
If you do not have a Will and unexpectedly die before you are divorced, your ex-partner can inherit your property (subject to the rights of any children). Get legal advice.
Disclaimer: The material presented on this website is an information source only. The information on this website is written for people resident in, or affected by the laws of Queensland, Australia only. Links to other sites from this website are provided for the users’ convenience. The LGBTI Legal Service does not endorse these sites and is not responsible for the information on these sites or the use made of this information. If you have a specific legal problem, you should consult a professional legal advisor.