Good morning
Understanding Divorce under the Family Law Act 1975
Divorce can be a challenging and emotional process. In Australia, divorce is governed by the Family Law Act 1975 (Cth), which adopts a no-fault system. This means the Court does not consider the reasons for the breakdown of the marriage. The focus is on whether the marriage has ended irretrievably.
The Sole Ground for Divorce
The only ground for divorce in Australia is that the marriage has broken down irretrievably, demonstrated by a period of 12 months and one day of separation. There must be no reasonable likelihood of reconciliation. Separation can occur even if parties remain living in the same home, commonly referred to as “separation under one roof”. In such cases, additional evidence is required to satisfy the Court that separation has in fact occurred.
Who Is Eligible to Apply?
An application for divorce may be made by one party alone or jointly by both parties, provided that at least one of the following applies:
- You are an Australian citizen by birth, descent, or grant of citizenship
- You regard Australia as your home and intend to live here indefinitely
- You have ordinarily lived in Australia for at least 12 months immediately before filing
Children under 18
Where there are children of the marriage under the age of 18, the Court must be satisfied that proper arrangements have been made for their care, welfare, and development before granting a divorce. It is important to note that divorce proceedings are separate from parenting proceedings. Parenting arrangements can be resolved before, during, or after a divorce application.
Divorce Is Not a Property Settlement
A divorce order only dissolves the marriage. It does not determine:
- Property division
- Spousal maintenance
- Child support
Once a divorce becomes final, strict time limits apply. Proceedings for property settlement or spousal maintenance must be commenced within 12 months of the divorce taking effect, unless leave of the Court is obtained. Missing this deadline can have serious legal and financial consequences.
When Does the Divorce Take Effect?
A divorce order usually becomes final one month and one day after it is made by the Court. Only after the order becomes final are parties legally divorced and able to remarry.
Our Approach
While many divorce applications proceed without complication, issues can arise where there are disputes about separation dates, arrangements for children, overseas marriages, or compliance with procedural requirements. If you are considering divorce or have already separated, obtaining timely legal advice can help you understand your rights, obligations, and important time limits. I am able to provide clear, practical advice tailored to your particular circumstances and can assist with divorce applications, parenting arrangements, and property and financial matters. To arrange a confidential appointment, do not hesitate in contacting me to discuss further.
Wishing you a wonderful day,
Jeffrey Choy
JCL Legal
0419 233 670
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Legal Disclaimer: This guide is for informational purposes only and does not constitute legal advice.