Divorce Lawyers Gold Coast

You no longer need to provide evidence of an affair, drunkenness, insanity or the like when applying for a divorce in Australia. The Family Law Act 1975 introduced a no fault divorce system.

You do, however, need to show that the marriage has broken down irretrievably and there is no reasonable likelihood of reconciliation.

It is important to note that even though Australia has a no fault divorce system, there may be some factors the Court considers when making parenting arrangements also known as child custody. For example, a history of mental illness, drug or alcohol abuse or domestic violence in the marriage may be considered when the Court makes a decision on who the children will live with or spend time with.

You can apply for a divorce on your own or jointly with your former spouse. In Australia, you’re eligible to apply for a divorce if either you or your former spouse:

• regard Australia as your home and intend to live in Australia indefinitely, or
• are an Australian citizen by birth, descent or by grant of Australian citizenship, or
• ordinarily live in Australia and have done so for the 12 months immediately before filing for divorce.

Additionally, the Court must be satisfied that:

• you and your former spouse have lived separately and apart for at least 12 months, and
• there is no prospect or reasonable likelihood of reconciliation.

If you and your former spouse have been separated under the same roof it is still possible to apply for a divorce. Some of the things the Court looks for when determining if you have actually been separated are:

• a change in sleeping arrangements
• a reduction in joint activities with your former spouse or de facto partner
• a decline in shared household activities, including cooking and eating meals together
• the division of financial contributions, by cancelling joint bank accounts and paying for bills or utilities from your individual incomes, for example
• discussions of the breakdown of your relationship or marriage with friends or family
• notifications to government departments or institutions that you are no longer in a relationship with your former spouse or de facto partner (informing Centrelink that you are single, for example).

Unless you are confident that you can demonstrate this successfully then you should wait until you are physically separated and living apart for a period of 12 months before you decide to apply for a divorce.

If you and your former spouse have reconciled briefly, you can still apply for a divorce if:

• the period of reconciliation was no longer than three months, and
• the period of separation prior to and after the brief reconciliation add up to at least 12 months.

Same-sex marriages are recognised retrospectively from 9 December 2017, which is the date same-sex marriage became recognised in Australia. Therefore, if you and your former spouse separated prior to this date the 12-month separation period is still required.

If you and your former spouse were married overseas prior to 2017 you are still eligible to apply for a divorce in Australia provided you meet the standard eligibility requirements.

The same process applies for a Divorce Application if you were married overseas, provided you or your former spouse:

• regard Australia as your home and intend to live in Australia indefinitely, or
• are an Australian citizen by birth, descent or by grant of Australian citizenship, or
• ordinarily live in Australia and have done so for the 12 months immediately before filing for divorce.

If you and your former spouse have been granted a Divorce Order overseas, then it will be recognised in Australia provided it was made in accordance with the local laws of the country where the divorce was issued.