Divorce

Application for divorce

In Australia, you can apply for a divorce through the Family Court by filing an Application for Divorce (Form 3). The Application can be made either by you (sole application) or by you and your spouse (joint application). In order to apply for a divorce, either you or your spouse:

• is an Australian citizen; or
• is ordinarily resident in Australia and has been for the year immediately before the application is filed; or
• is domiciled in Australia; and
• have been living separately for at least 12 months (which includes living separately under one roof), and there is no reasonable likelihood of resuming married life.

The Family Court recognizes marriage from almost all other countries. You may apply for a divorce in Australia even if you were married overseas, as long as the above requirements are met.

If at the time of the application for divorce it has been less than 2 years since you were married, you and your spouse are required to attend counseling to discuss the possibility of reconciliation. If counseling is not possible, you will need to write to the Court requesting permission to file the application without counseling certificate.

Generally, you are not required to attend the Court if:

• the application is made by you and your spouse jointly; or
• you do not have any children and your spouse has not objected to the divorce; or
• it is not an application for divorce where you and your spouse lived separately under one roof.

Obtaining a divorce order usually takes about 3 – 5 months in Western Australia and if you are planning to re-marry, you should consider filing the application as soon as possible after the 12 months separation period, in order to avoid delays.

It is important to understand that a divorce does NOT resolve parenting and financial matters.

For more information about financial matters, please see SEPARATION: PROPERTY

For more information about children’s matters, please see SEPARATION: CHILDREN

Separation under one roof

It is possible to obtain a divorce even if you and your spouse have been living in the same house, but not as husband and wife, during part or all of the required 12 months separation period. This situation is generally known as “separation under one roof”.

In this situation, you will need to support your divorce application with additional evidence to prove “separation under one roof”. Generally, the additional evidence is provided to the Court by way of affidavit which should explain:

• matters relevant to prove you and your spouse have separated, for example change in sleeping arrangements, reduction in shared activities, change in performing household duties for each other, change in financial arrangement, etc;
• why you and your spouse continued to live in the same house after separation and your plans regarding future living arrangement;
• living arrangements you and your spouse made for any child of the marriage during the time you and your spouse were living in the same house;
• whether you have informed anyone else (e.g. government department, family members or friends) about your separation with your spouse.

Further, the Court will ordinarily require corroboration of your claim by a third person. This third can be one of your friends or family members who knew about your separation.

The Court will list for a hearing in open Court for an application for divorce in situation whether parties lived under the same roof.  You and your witness should attend the hearing and may be required to give further evidence at the hearing.

Dispensation of service

If you apply for a divorce on your own, you must serve the application on your spouse. Service of Court documents means delivering the document to another party to the proceedings and there are different rules about the permissible modes of delivery depending on the type of the document that needs to be served.

An application for divorce may be served by post or personally delivered by another person. However, you should only serve the application for divorce by post if you are confident that your spouse will receive it and will likely sign an acknowledgment (Form 6). There are time limits for serving the divorce application on your spouse and failure to do so will likely result in delays or adverse costs order being made against you.

Inevitably, there will be situations where you are unable to serve the divorce application on your spouse. If this happens, you will need to make an application to the Family Court for an order to dispense with the requirements of service. An application for dispensation of service can be made by an Application in a Case (Form 2) supported by an affidavit.

In deciding an application for dispensation of service, the Court has to consider:

• whether all reasonable efforts have been made by you to find and serve your spouse;
• what other steps could be taken and the likely costs for you to take these steps; and
• whether advertising or some other method is likely to bring the original application to the attention of your spouse.

The Family Court expects you to make all reasonable efforts to find your spouse prior to you seeking orders to dispense with service. Generally, this means you will need to demonstrate that you have:

• attempted to contact your spouse with his last known contact details (e.g. phone and email);
• made inquires with any relative or close friends of your spouse;
• made inquires with the last known employer of your spouse, any club or organization of which your spouse was a member, any bank your spouse dealt with;
• conducted relevant electoral search or other land searches to ascertain the current address of your spouse.

Visa cancellation

If you are in Australia on a Temporary Partner Visa, a relationship breakdown may have significant impact on your ability to stay in Australia. It is a requirement that the Department of Immigration and Border Protection (“DIBP”) be notified if the relationship ends before a Permanent Partner Visa is granted, which will generally lead to your sponsorship being withdrawn.

After the sponsorship is being withdrawn, you may still be eligible to continue with your application for a Permanent Partner Visa and therefore continue to stay in Australia if:

• you can prove to the DIBP that you or your dependent children have suffered from family violence ; or
• you and your ex-partner have shared parental responsibility to a child of the relationship who is under 18 years old and the DIBP is satisfied that it is not in the child’s best interest if you are not allowed to stay in Australia.

If the DIBP does not make a favourable decision on your application, you may seek review of that decision from the Administrative Appeal Tribunal and after which you may seek judicial review or ministerial intervention.

If the relationship break down happens after a Permanent Partner Visa is granted, it will not impact on your ability to remain in Australia. However, a Permanent Partner Visa may be revoked by the DIBP if it was found that your relationship with your spouse/partner was not genuine.

If you receive notification of your sponsorship being withdrawn, you must act immediately because failure to do so may render your continuous stay in Australia unlawful and you may be detained as a result.