A Divorce is a court order which terminates a marriage. To apply for a Divorce, you must first ensure that your their marriage is legal. The Marriage Act 1962, sets out a number of formalities and requirements for a marriage. Beyond the formal requirements during the ceremony, the Act requires that:
- neither party is lawfully married to another;
- the party’s consent to the marriage is real; and
- that the parties are of a marriageable age.
Generally, Divorce proceedings occur in the Federal Circuit Court of Australia, at a registry which is most convenient for both parties.
When making an order for a Divorce the courts are required to confirm or consider a number of factors as set out in the Family Law Act 1975.This includes:
- Existence of a Valid Marriage – A Marriage Certificate will be required and if your certificate is not in English, a Translation will be required.
- Domicile – s39(3) of the Act requires that either party to the marriage is an Australian citizen, is domiciled in Australia or is ordinarily a resident in Australia and has been a resident for one 1 year.
- Ground – Australia is a ‘no fault’ jurisdiction in relation to Divorce. There is one ground for Divorce and that is found in S48(1) of the Act, being that the marriage must have ‘broken down irretrievably.’ This is evidenced by twelve (12) months separation. Parties are not always required to separate physically to constitute a marriage being ‘broken down’ (s49(2)), however you may be required to provide additional evidence in support of the separation.
- Children – The Court must be satisfied that there are proper arrangements in place for any children of the marriage under the age of eighteen. If this is not the case, the Court can, with reference to section S55A(1)(b)(ii) decide that the Divorce should take effect even though it is not satisfied that there are such arrangements in place.
- Service – The application for Divorce must be personally served on the other party unless the Court Orders otherwise.
The Family Law Team at Chamberlains Law Firm is able to assist you with obtaining a Divorce. Please reach out to firstname.lastname@example.org if you would like information about our Team and fixed fee options for Divorce Applications.