Divorce
Lawyers

Australia has a no-fault divorce system. The only ground for a divorce is that the marriage has irretrievably broken down, and the parties have been separated for 12 months.

What is separation?

In Family Law, separation occurs when the matrimonial relationship has broken down. This can include living under the same roof, as long as you lead largely separate lives. It is important to:

• Communicate your decision with your spouse when you consider your marriage to be ended; and
• Record the date of separation for future reference.

In some circumstances, if you and your spouse have lived under the same roof during the 12 month separation period, additional information will need to be provided to the Court by way of affidavit.

Sole application

A sole application is where you file an application for a divorce by yourself. If you file a sole Application for Divorce you will need to make arrangements to serve the Application on your spouse.

Service can be:

• By post -if you are confident your spouse will sign and return an “Acknowledgement of Service”; or
• By hand – you must arrange for a third party (not yourself) over the age of 18 to serve the divorce application on your spouse, this can include a process server; or
• To your spouse’s lawyer – if your spouse has a lawyer, they may be willing to accept service on behalf of their client.

Service of the divorce application must occur at least 28 days before the Divorce Hearing date. You will also be required to file an Affidavit of Service to prove to the Court you have notified your spouse of the divorce application.

Joint Application

A joint application is when you and your spouse file an Application for Divorce together. You will both sign the joint application.

If you file a joint application, you will not need to arrange service of the Application for Divorce, nor file an Affidavit of Service. Accordingly, it is a more streamlined and less stressful process.

If you have continued to live under the same roof during your 12 months of separation, you will both need to provide the Court with additional information. This information must be provided by way of an affidavit.

If you are applying for divorce on your own, you will need to file an affidavit. You should also file an affidavit by an independent person, such as a friend, family member or neighbour, will need to file an affidavit.

If you and your spouse are filing a joint application for divorce, you both will need to file an affidavit.

Your affidavit should explain:

• changes in sleeping arrangements;
• reduction in shared activities or family outings;
• decline in performing household duties for each other;
• division of finances; for example, separate bank accounts;
• any other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation;
• why you continued to live in the same home following separation and what intention, if any, you have of changing the situation;
• what government departments you have advised of your separation if you receive a government benefits.

If your Application for Divorce is granted, your Divorce Order becomes final one month and one day following your Divorce Hearing. Both you and your former spouse are able to re-marry after this date.

In all Australian States, except Western Australia, a Divorce Order automatically revokes any gift or appointment of trusteeship made in a Will in favour of your spouse. We strongly recommend that you update your Will following your separation and divorce.