Just as with heterosexual couples, LGBTQI+ couples can apply for a divorce if they can prove that their marriage has broken down irretrievably. You are not required to provide reasoning as to why the marriage has ended due to the “no-fault” divorce system outlined in the Family Law Act 1975.

However, you must demonstrate that you and your spouse have been separated for a minimum of 12 months before filing the divorce application. Either you or your spouse must also fulfil one of the following criteria in order to file for divorce in Australia:

• Must be an Australian citizen by birth, descent, or by a grant of Australian citizenship.
• Must regard Australia as your home and intend to live in Australia indefinitely.
• Must have been living in Australia for at least 12 months immediately before filing for divorce.

Yes, it is possible. You do not necessarily need to have been living together to be considered “separated” – you just need to demonstrate that you have not been in a relationship for a minimum of 12 months before your divorce application.

The amendments to the Marriage Act legally recognised LGBTQI+ marriages that had been solemnised overseas and allow eligible couples to apply for a gay or lesbian divorce in Australia.

LGBTQI+ marriages that were solemnised in Australia by a diplomatic or consular officer under the law of a foreign country prior to the Marriage Act amendments are also recognised under the current Act and couples can apply for a divorce accordingly.

You are required to provide a valid marriage certificate in order to be granted a divorce by the court. Valid here refers to being readable by the Australian Family Court.

Hence, if your marriage certificate is not in English, you need to get it translated. Once that is done, you have to submit the translated certificate with an affidavit of the translator stating their qualifications as a translator as well as a certification that the English translation is an accurate translation of the original.

You can either make a “sole application” by yourself and serve a copy of the document to your spouse or make a “joint application” with your spouse.

If you make a “sole application” you will need to attend court if there are any children under 18 involved. However, if it is a “joint application”, there is no requirement for either party to attend court.

Once the application is signed by both parties, it is then submitted to the Federal Circuit and Family Court of Australia, along with the valid marriage certificate. After checking off all the legal requirements and the court is satisfied that the marriage has broken down irreversibly, they will grant you the official divorce order a month and a day after the hearing.

Couples can only marry once the divorce is finalised – a month and a day after the hearing. It is illegal to marry someone when you are already married, and the second marriage will have no legal effect.

If you would like to marry a new partner in Australia while still being married to another person overseas, you will need to divorce your overseas partner before marrying again.

It is also worth noting that LGBTQI+ couples who married overseas cannot marry each other again in Australia unless there is a concern that the foreign marriage may not be valid. However, you can hold a different type of ceremony such as a confirmation of vows.

We understand that every LGBTQI+ divorce is different so our team of professional and empathetic LGBTQI+ divorce lawyers are ready to answer any questions and work closely with you to offer expert legal advice according to your circumstances.