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When Can I Apply For a Divorce?

by | Mar 24, 2023 | Family Law, Uncategorized

It is important to note that a Divorce is not the same as a property settlement. This is a very common misconception. A property settlement addresses the division and distribution of the party’s assets and liabilities after separation. Whereas, a Divorce (usually occurs after the property settlement) and is the final administrative step of seeking that the Court void the parties marriage certificate.

If you are separated and want to apply for a legal Divorce you must answer “yes” to the below four (4) questions.

  1. Firstly, you or the other party must meet at least one of the following jurisdictional requirements.
  • Were born in Australia or have become an Australian citizen by descent (born outside Australia and at least one parent was an Australian citizen and your birth is registered in Australia).
  • Are an Australian citizen by grant of Australian citizenship (a citizenship certificate will be required).
  • Are lawfully present in Australia and intend to continue living in Australia. You must have been living in Australia for at least the last 12 months – evidence must be provided e.g. your passport showing the date of arrival at least one year prior and a valid or current visa.[1]
  1. Secondly, you consider your marriage to be broken down ‘irretrievably’, meaning that there is no reasonable likelihood that you will get back together?
  2. Thirdly, have you been separated for 12 months and 1 day or longer?

Please note, if you have been separated and living in the same residence for any part of the twelve months prior to filing your application you will need to provide extra evidence to prove that there has been a change in the marriage by preparing and filing an affidavit.[2]

  1. Finally, do you have a Marriage Certificate?

Please note, if you do not have your marriage certificate, you must obtain a copy from Births, Deaths and Marriages in the state or territory in which you were married. If you were married overseas you should contact the relevant authority in that country to obtain a copy of your marriage certificate (translated into English). [3]

If you meet all of the above criteria then you are eligible to apply for a Divorce.

You can apply for a divorce by yourself (sole application) or together with the other party to the marriage (joint application). The same online application is used for both sole and joint applications.[4]

For more information, please visit the Federal Circuit and Family Court of Australia website at https://www.fcfcoa.gov.au/fl/hdi/apply-for-divorce

If you are seeking a Divorce or have any questions about the Divorce process please contact our experienced legal team on (03) 9614 7111

[1] Federal Circuit and Family Court of Australia website

[2] Ibid.

[3] Ibid.

[4] Ibid.