Overview:  How do I get a Divorce?

Divorce is not about Property Settlement. 

Divorce is not about Parenting. 

Divorce is about the legal dissolution of a marriage (very unromantic compared to the wedding event which creates a marriage). 

Divorce is very much an administrative process in the eyes of the law (although it sure doesn’t feel like it for anyone living it). 

The Law:

The process for obtaining a divorce is governed by legislation (the law). Including:

1. Part VI of the Family Law Act 1975 (Cth) (The Act) and;

2. The Family Court and Federal Circuit Court Rules 2021 (The Rules) and;

3. Practical Guidance is also provided by the Central Practice Direction and Practice Direction ‘Divorce Proceedings (FAM-DIVORCE).

When can you file for divorce?

Either party to a marriage can file for divorce once the jurisdictional question in section 39[1] and the legislative test in section 48 have been met.

What are the reasons for a divorce in Australia?

Australia has a no-fault divorce concept.

This means that if someone has an affair or one party is at fault for the breakdown of the relationship, this is not relevant to the question of whether a divorce should be granted.

Separation is defined under section 49 of the Act and makes it clear that “parties to a marriage may be held to be separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties”.

The legal test for a divorce application being brought is set out in Section 48 of the Act. Being:

1. Has the marriage broken down irretrievably[2]?

2. The court determines whether a marriage has irretrievably broken down when the parties separated and lived separately and apart for a continuous period of not less than 12 months[3]?

If the court considers that there is a reasonable likelihood of cohabitation being resumed, then the court will not make the order for divorce[4].

Family Law Time Limits:

You only have 12 months[5] from the date of divorce to finalise your property settlement or maintenance request unless you have the consent of the other party or leave of the court. It is crucial that you obtain legal advice in respect of Property Settlement before proceeding with your divorce.

Children under the age of 18 years old:

If there are children under the age of 18 years old to your marriage, the court will need to be satisfied that there are suitable care arrangements in place for the ‘care, welfare and development of the children[6].

Do you need help?

If you need help with your application for divorce then Coastal Lawyers can help. We offer a fixed fee divorce process to make the process of getting your divorce, stress free and certain in terms of your legal fees.

Book in a free 15 minute call to discuss your divorce today.

[1] Section 38 Family Law Act 1975 (Cth) there is jurisdiction if either spouse at the time of filing is an Australian citizen, domiciled or ordinarily resident in Australia.

[2] Section 48(1) Family Law Act 1975 (Cth)

[3] Section 48(2) Family Law Act 1975 (Cth)

[4] Section 48(3) Family Law Act 1975 (Cth)

[5] Section 44(3) Family Law Act 1975 (Cth)

[6] Section 55 Family Law Act 1975 (Cth)

Disclaimer: Because would we even be lawyers without one? 

• This article is not legal advice and has been prepared as a resource to assist members of the community and legal profession who wish to have an understanding of a particular area of the law.

• You should always undertake your own research and/or consult with a lawyer to ensure that the information is up to date and relevant to your case.  

• In addition, the blog post refers to the law as current at a particular date. The law is changing regularly and accordingly, you should always refer to the legislation applicable at the time .