Divorce in Australia follows the no-fault principle. This means that the court does not need to know what led to the separation or divorce. All they need to know is that the marriage has irretrievably broken down and in circumstances where children under the age of 18 are involved, what arrangements are in place for the children.
Who can apply for divorce in Australia?
You can issue divorce proceedings in Australia if you satisfy the following (at the time of filing your application):
- Either you or your former husband/wife is an Australian citizen; or
- Either you or your former husband/wife has been an ordinary resident of Australia in the past year: s39(3) Family Law Act 1975 (FLA).
For marriages of less than two years after the date of marriage, (unless an exception applies), parties must participate in counselling prior to any divorce order being issued by the court.
When can I apply for divorce?
Either party can apply for divorce after 12 months of separation. If the court considers there is a reasonable chance that you and your former husband/wife may cohabitate again, a divorce order will not be made.
You can apply for divorce even if you cannot locate your former spouse however, you must demonstrate to the court that you have made all attempts to locate your spouse, and make reasonable attempts to serve your spouse.
In circumstances where they cannot be found personally and you have made all reasonable steps to serve your former spouse, you can apply to the court for either substituted service OR dispensation of service.
Substituted service is where the court allows you to serve a third person who the court is satisfied will bring the court documents to the attention of the spouse.
Dispensation of service is where the court grants that you do not need to serve your spouse as you have taken all reasonable steps to serve.
How do I apply for substituted service or dispensation of service?
To apply for either substituted service or dispensation of service, you need to file an application in a case with a supporting affidavit which outlines in detail several items regarding service.
The process of filing an application for divorce, whether this be a joint or sole application (requiring service), can sometimes have complications.
Our team of family lawyers can assist you with any issues you may have whilst processing your application for divorce.
After you separate or divorce, you should also give early consideration to: