FAQ: Divorce Requirements in NSW
How to get a divorce in Australia?
In Australia, the only requirement for getting a divorce is that the marriage has irretrievably broken down. However, you must be able to prove this to a family court. If you aren’t sure how to get a divorce in Australia, our lawyers can help you.
You must first make a divorce application and file it in court. Then, if the court is satisfied that the circumstances meet the requirements, it will grant the divorce.
What is an irretrievable breakdown of a marriage?
Irretrievable breakdown of a marriage is a legal term that means that the marriage is at an end: there’s nothing that can be done to repair or restore it.
Proving an irretrievable breakdown isn’t as simple as it sounds. There are a range of things to establish before a court will grant a divorce application, including:
1. That the marriage is valid
2. That there has been a legal separation
3. That either spouse has Australian citizenship or residency status that allow them to apply for a divorce under Australian laws
4. If the marriage was short-term, that the couple has undergone counselling
5. If there are children, that there are arrangements in place that are in their best interests
Australian divorce laws have a no-fault principle, which means that a court doesn’t need to decide if one spouse caused the marriage to break down.
What is a legally valid marriage?
In Australia, if the marriage isn’t legally valid in the first place, you can’t get a divorce. So it’s worth taking a look at what makes a marriage legally valid.
It’s not a requirement that the marriage was celebrated in Australia; if it was celebrated in another country, and in accordance with that country’s laws, the marriage will be recognised in Australia so long as it doesn’t offend Australian laws. This includes same-sex marriages that were celebrated before same-sex marriage laws came into effect in Australia.
Australian laws will usually recognise a marriage if:
– Two adults enter freely into the marriage; and
– They’re not in a prohibited relationship (for example, siblings); and
– They’re not already married
There are exceptions to this. If you’re concerned about whether your marriage is valid, contact us for advice.
If you were married in another country, you’ll need to provide evidence of the marriage, for example, a marriage certificate from that country. Speak to us about what you need, and we’ll give you some guidance about how to get a divorce.
What does it mean to separate?
When you separate from your spouse, it means you no longer live together as a married couple. Every situation is different. For example, some spouses continue to live under the same roof even though they’ve separated.
If the spouses agree on the date of separation, it’s usually not an issue, so long as at least 12 months have passed before they apply for a divorce. But if they can’t agree, a court may have to work out the date of separation and will look at evidence such as household bills, rent receipts, bank statements and testimony from family or friends.
What are the requirements for citizenship and residency?
People who are Australian citizens are allowed to apply for a divorce in Australia. This is also the case if only one spouse is an Australian citizen.
Even if neither of you are Australian citizens, you may divorce in Australia if you intend to live here for the long-term and have done so for at least 12 months before applying for divorce.
It’s still necessary to prove separation for at least 12 months before applying for divorce.
If you weren’t born in Australia, you’ll need documents that prove your Australian residency or citizenship before you can get a divorce. We’ll help you work out what documents you’ll need, and where to locate them.
Australia’s citizenship and migration laws can be complex, especially if you’re going through a divorce. If you’re uncertain about your status and whether you meet Australia’s divorce requirements, we can help.
How to get a divorce for a short-term marriage?
Under Australian law, short-term marriages are less than two years.
If your marriage is short-term, you and your spouse must undertake family counselling to work out whether reconciliation is possible. The counsellor must provide a certificate to court to say that you have undergone counselling.
In some situations, you may not be required to attend counselling, for example, in some cases of domestic violence. Our lawyers can help you to figure out if you need to get a divorce.
How to get a divorce when you have children?
If you have children, you and your spouse will have to show that you’ve made proper arrangements for their care, welfare and development. A court will require details about the children’s:
– Living arrangements
– How often they will have contact with each parent
– Financial support
When it comes to children, divorce requirements are complicated. Even though a court wants to know that proper arrangements are in place, it doesn’t make orders about children as part of the divorce. Orders about children are made separately, as part of parenting or child support applications.
We understand that these issues can be difficult to navigate. That’s why we’re experts in child custody issues as well as divorce. We offer seamless legal services to our family law clients. We can help you too.