A divorce is when you legally end your marriage. The divorce literally dissolves your marriage.
To apply for a divorce, obviously you need to have been married. There are a few circumstances where it is more appropriate to apply for a Decree of Nullity, namely that the marriage is void, but in those circumstances you would need to first obtain legal advice.
If you are applying to the court for a divorce, you are called the applicant. Your spouse is called the respondent. You may apply for a divorce if at the time that you file (or lodge) at the court your application, either you or your spouse are:
- An Australian citizen
- Domiciled in Australia (that is that you live in Australia and intend to continue living permanently in Australia); or
- Are ordinarily resident in Australia and have been so resident for one (1) year immediately preceding that date.
The application to the court for a decree (that is an order) dissolving your marriage is based on the ground that the marriage has broken down irretrievably. Australia has a "no fault" jurisdiction and the only ground for divorce is an irretrievable breakdown of the marriage.
To establish that ground, the court must be satisfied that you and your spouse have separated and lived separately for a continuous period of at least 12 months preceding the date on which you filed your application for divorce. The court will not make an order for divorce if the court is satisfied that there is a reasonable likelihood that cohabitation will be resumed.
There needs also to be certain information given to the court about children of the marriage under the age of 18 years. A child of the marriage means:
- A child born to you and your spouse before or during the marriage;
- Adopted by you and your spouse during the marriage or by either of you with the consent of the other; or
- Born during the marriage to the woman as a result of an artificial conception procedure; or
- A child of one of the parties if the child has been treated by the husband and wife as a child of their family at the time immediately before they separated.
Where there are children under the age of 18 years, before the court can grant your application for divorce, the court must be satisfied that:
- Proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
- Even though the court is not satisfied that such arrangements have been made, there are circumstances by reason of which the decree nisi should become absolute.
If you are considering getting a divorce, please contact our office for assistance.