In Australia, the only ground on which the court may make a divorce order is the irretrievable breakdown of the marriage. The reasons for the separation, although personally significant, are not relevant to the court’s determination of whether to grant a divorce order. Fault is not a ground for divorce under Australian law.
The court will not make a divorce order unless it is satisfied that the parties were separated for a continuous period of at least 12 months immediately preceding the date on which the divorce application is filed with the court – however, they may resume cohabitation on one occasion of not more than three months during the period(s) of separation (subject to certain specific rules).
Where a couple lived together under the same roof during all or part of the 12 month period prior to filing the divorce application, either or both of them (depending on who makes the application) will be required to file an affidavit with the application setting out the nature of the living arrangements during the applicable period.
The court will then determine the date on which the parties separated, as a matter of law.
Subject to any issues which may arise during the application process, it usually takes approximately three months for the divorce to be finalised from the date of filing the application.
It is important to understand that the divorce process is entirely separate from any agreement that you make, or orders you seek, in relation to any property interests you share with your former spouse, or in relation to the care of any children you have together.
These issues may be addressed either before filing for divorce, or afterwards, provided that any application in relation to property settlement is filed with the court within 12 months from the date on which the divorce is finalised. The court may grant an extension of time to file for property settlement in certain limited circumstances.
Our family lawyers are available to assist you to understand any legal issue relating to separation and divorce.
We can also advise you of the best way to manage the divorce process in the context of any other outstanding issues you may want to resolve with your former spouse, including in relation to your shared property and ongoing parenting arrangements.