Can You Apply for a Divorce?

To be eligible to apply for a divorce, you or your spouse must have been separated and living separately for a minimum of twelve (12) months, with no reasonable likelihood of resuming married life.

What If you are separated but Still Living Together?

It is possible to be separated even if you are still living together. This can occur for a variety of reasons, often for the sake of the children. If you live under the same roof during all of or part of the minimum twelve month separation period, you will need to file an Affidavit (a sworn statement) from yourself and at least one witness.

What Should the Affidavit Contain?

Your Affidavit should address changes that have occurred between you and your spouse before and after separation. This is to show that even though you’re living in the same residence, your relationship doesn’t reflect a marriage. You can include the following matters in the Affidavit:

  • Do you have separate sleeping arrangements?
  • Has the sexual relationship ceased?
  • Have you changed the domestic services you perform for each other since separation?
  • Do you have separate financial arrangements such as separate bank accounts?
  • Have you stopped attending social functions and activities together?
  • Why are you still living separated under one roof? For example, financial pressures, stability for children of the marriage.
  • What arrangements are in place for children under the age of 18?
  • Have you informed any government departments such as the Department of Human Services – Child Support of your separation?
  • Do you think there will be a change to the living arrangements? If so, when will this occur?

Filing the Affidavits

The Affidavits are filed with the Divorce Application, Marriage Certificate, documents establishing citizenship (unless a citizen by birth) or for non-citizens an Affidavit establishing that one of the parties is domiciled and/or ordinarily resident in Australia.

After the application for divorce is filed, the other side may file a Response to Divorce within 28 days, if they disagree with any of the facts set out in the Affidavit and Application for Divorce. The court will process the Application and arrange a hearing date thereafter.

Contact us

If you and your partner are going through a separation or divorce we recommend seeking legal advice to ensure the best outcome. We have experienced family law solicitors who can provide advice and draft Affidavits. If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.