A divorce is legal recognition that a marriage has ended, and it brings to a close the legal duties and responsibilities spouses owe to one another. Obtaining a divorce is the first formal step in a broader process – one that may involve arrangements for children, property and spousal maintenance. It is possible for parties to live under the same roof and still be legally separated.  Even so, in most cases, formalising the relationship’s end through divorce is the better path forward, as it allows both parties to move ahead with certainty.

Are you eligible to apply for a Divorce?

Before applying for a divorce, it is worth understanding what the law actually requires. A divorce will generally be granted where there is no reasonable likelihood of the parties reconciling and resuming married life and where the couple has lived separately and apart continuously for at least a period of 12 months. This requirement matters beyond the divorce itself, for example, if you intend to remarry, it will be necessary to obtain a divorce from your current spouse.

Eligibility to apply also depends on a connection to Australia. You, or your spouse, must satisfy at least one of the following:

• Regard Australia as your home and intend to live in Australia indefinitely, or
• Are an Australian citizen by birth, descent or by grant of Australian citizenship, or
• Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

It is also worth keeping an important deadline in mind from the outset: once a divorce is granted, you have only twelve months to apply to the Federal Circuit and Family Court of Australia (the “Court”) for property or spousal maintenance orders. Missing this window can make it significantly harder to have those matters resolved, so it should factor into the timing of any application.

Divorce Cases where Children are involved

Where a couple has children under the age of eighteen (18), the Court will not grant a divorce unless satisfied that proper arrangements have been made for their care. This reflects the Court’s paramount concern in any family law matter: the best interests of the child.

What counts as being in a child’s best interests changed significantly under amendments to the Family Law Act 1975 (Cth) that took effect on 6 May 2024.  This takes into account the following:

• what arrangements would best promote the safety of the child and the people who care for them, including any history of family violence, abuse, or neglect;
• any views the child has expressed;
• the child’s developmental, psychological, emotional, and cultural needs;
• the capacity of each person who has, or is proposed to have, parental responsibility to meet those needs;
• the benefit to the child of a relationship with their parents and other significant people in their life, where it is safe to do so; and
• any other fact or circumstance relevant to that child’s particular situation.

Other Considerations when applying for a Divorce

It is a common misconception that a divorce order settles everything. In fact, being granted a divorce says nothing about how property will be divided, whether spousal maintenance is payable, or what arrangements will be made for children. Those matters are dealt with separately, and couples have two main paths available to resolve them: If you want to make arrangements about these issues, you can:

• Reaching an agreement with their former spouse and filing it with the Court for formal approval; or
• Applying to the Court for orders, where an agreement cannot be reached.

Contact us

We understand that the divorce process can be strenuous for both parties. If you would like to discuss your unique circumstances with a highly experienced and strategic divorce lawyer, please do not hesitate to contact Etheringtons Family Lawyers in North Sydney on (02) 9963 9800 or via the contact form here.