Divorce – Can I apply?

Nov 18, 2023

How to apply for divorce | Melbourne Lawyers

Can I apply for a divorce?

You can apply for a divorce once your marriage has broken down irretrievably and you have lived separately and apart for twelve months immediately prior to the date of filing your application for the divorce order.  You will need a copy of the Marriage Certificate to file with the Court.

The Federal Circuit and Family Court of Australia (FCFCOA) provides a flowchart which outlines the steps required to apply for a divorce in the Court, whether you are doing so together with your spouse, or on your own. It also includes checklists of key documents you may need to provide to the Court in support of your application, and helpful links to other resources that may assist.

 

Which Court and what is the cost?

The application is made in the Federal Circuit and Family Court of Australia (FCFCOA), electronically via the Court’s portal.  Filing fees apply and may be reduced if the applicant holds a pension or Commonwealth Health Care card.  Professional fees associated with the preparation of the application and any appearance required may also be applicable.

 

What if there is a chance my spouse and I will get back together?

A divorce order will not be made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

 

Application for divorce where there are children.

The Court will only grant a divorce order after it has been satisfied as to the following:

  1.  That there are no children of the marriage who are under eighteen years of age; OR
  2. That the only children of the marriage who are under eighteen years of age are the children specified in the order and that:
  • Proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
  • There are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that such arrangements have been made.

Your attendance at Court may be required in some instances.

 

What if some of the time we were separated was spent under the same roof?

If both parties to the marriage lived in the same house during part or all the required twelve months separation period prior to applying for a divorce order, it will be necessary to provide extra information to the Court by way of an Affidavit or Affidavits with the application for divorce order.  An Affidavit is a written statement with special witnessing requirements.   We can help you prepare these Affidavits.

In addition to your own Affidavit, you will need corroborative evidence from an independent party or parties by way of Affidavit (if it is a joint application both parties to the marriage must file an Affidavit each).  The independent party or parties for instance could be a family member, friend or neighbour. 

 

What if my spouse and I resume living together after we have separated?

What is the effect of resumption of cohabitation after we have separated?

If after you and your spouse have separated, you resume cohabitation on one occasion, but within a period of three months after resumption of cohabitation you again separate and from then on live separately and apart, the before and after the period of ”resumed” cohabitation may be added together as if they were one continuous period. 

The period of “resumed” cohabitation after initial separation is not be included as part of the period of living separately and apart.

 

Does one party need to be at fault?

No, the divorce process under the Family Law Act 1975 (Cth) is a no fault system.  The marriage may be at an end and the parties deemed to be separated notwithstanding the cohabitation was brought to an end as a result of the action or conduct of only one of the parties (if not both).

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