In Australia, a divorce can be obtained where parties have been separated for at least 12 months, the marriage has broken down irretrievably, and there’s no chance of reconciliation. An Application for Divorce can either be filed by the parties jointly, or by one party separately.
A couple who is separated and still living under the same roof can apply for a divorce provided they satisfy the above requirements; however, they will also require Affidavits from others who observed their relationship to prove that the marriage is over.
A divorce may be ordered if the applicant can prove there is an irretrievable breakdown of their marriage. This is proven by separation of more than 12 months.
The court is generally prohibited from granting a divorce order if the marriage is less than two years. A court may order a divorce if the marriage is less than two years and the application is accompanied by a certificate stating you attempted reconciliation with a third party, such as a family counsellor.
There may also be a limited range of circumstances where you can apply for divorce despite your marriage being less than two years and you have not got a certificate.
You do not need your partner’s consent in order to apply for divorce. You can file a sole application for divorce because you think your marriage has broken down irretrievably and there is no reasonable chance of you getting back together. You must tell your partner that you think the marriage is over and you want a divorce. You may be asked to prove that you have told your partner that you intend to divorce them.
You should not mention your partner’s intentions or thoughts on the matter in your application. You may be asked to provide evidence of their state of mind if you make any statements about it.
You may still apply for divorce with your partner’s consent. This is called a joint application.
Many court processes have been moving online, and the COVID-19 pandemic has accelerated this trend. Divorce applications can be eFiled.
eFiling is the process of filing court documents and applications online. Documents and applications can be filed through the Commonwealth Courts Portal. If you are seeking a divorce, you will need to create an account to access the Commonwealth Court Portal. You will also need access to a scanner, printer and Visa or Mastercard for paying filing fees.
Ordinarily, you would only be required to go to court for a hearing if you are a sole applicant and there are children under 18 years of age. During COVID restrictions, most court hearings are now conducted online. This is usually done through Microsoft Teams. Hearings may also be conducted through other video conferencing platforms or by telephone. Your hearing may be face-to-face if there are exceptional circumstances to necessitate it.
