Divorce FAQs

How long do we need to be separated?

Australia has a no fault divorce system. What this means is that the behaviour of both parties is not relevant, only that the relationship has irretrievably broken down.

One of the indicators of this is that the parties to the marriage have been separated for at least 12 months.

Do I need to give reasons why I want a divorce?

Since 1975, with the introduction of the Family Law Act, Australia has adopted a “no fault” divorce system. This means that, unlike in the past, the Court does not need to be satisfied that any of the parties are “at fault” or have done anything wrong or caused the parties to separate.

This also means that you are not required to give any particular reason for wanting a divorce. The only ground that Court needs to be satisfied in this regard is that the relationship has irretrievably broken down.

Do i need to obtain my partner’s consent?

No. You can make an Application for Divorce on your own, or jointly, but “consent” or “agreement” is not required. There are also very limited grounds upon which someone can object to or successfully resist a divorce.

After separation, we tried to reconcile, but it only worked for a short time. How does this effect the 12 month separation requirement?

You are given one opportunity to reconcile for a period of up to 3 months without nullifying the prior period of separation. If you separate again within 3 months of the attempted reconciliation, the separation period up to the attempted reconciliation as well as after the failed reconciliation will count toward the 12 month total required for the filing of an Application for Divorce.

However, should you attempt reconciliation for a period of more than 3 months and then re-separate, the 12 month period of separation must ‘restart’ after the end of the attempted reconciliation.

We are separated, but I can’t afford to move out. Does this count as separation for the 12 month requirement?

There is no requirement that you live in different residences during the period of separation. However, if you live separately under the same roof, and wish to use this towards your 12 separation period, you and your spouse and a third party (such as friend) will each need to file an affidavit with the Court verifying that you were in fact separated during that period of time.

The main concern of the Court is that the separation was genuine and that whilst you may be living under the same roof, you were not living together as husband and wife.

We have been married for less than 2 years. Can we get divorced?

Assuming that you meet the other criteria such as being separated for a period of 12 months, you may apply for a divorce. However, a counselling certificate will need to be filed with the Divorce Application.

We weren’t married in Australia, can we get divorced here?

Even if you were married overseas, you may seek a divorce in Australia if you or your spouse are an Australian citizen, regard Australia as ‘home’, and/or have lived in Australia for at least 12 months prior to applying for a divorce.

If you need assistance with a divorce matter, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a divorce lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong today.