This article will guide you through the key legal and practical considerations in divorce, ensuring you meet all eligibility, jurisdictional, and administrative requirements. Understanding these factors is essential to avoiding delays and complications in your application. Whether you need clarity on the 12-month separation rule, jurisdictional criteria, or documentation requirements, seeking advice from an experienced divorce lawyer can help you navigate the process and protect your legal rights.
Irretrievable breakdown of the marriage
Under the Family Law Act 1975 (Cth), a marriage is considered irretrievably broken down if the couple has been separated for at least 12 months with no reasonable likelihood of reconciliation. The 12-month separation period begins from the day one, or both parties decide to end the marriage. While the decision to divorce doesn’t need to be formally announced to the other party, actions must clearly reflect that the relationship has fundamentally changed.
Separation is not just about physical distance. A couple may continue living under the same roof, but to be legally separated, there must be clear changes in their daily lives. This includes sleeping arrangements, financial independence, household responsibilities, and social activities. Conversely, separation is not automatically assumed if you live apart for reasons such as work or personal circumstances but maintain your marital relationship. In such cases, a clear and deliberate communication of intent to divorce is essential to establish the separation date and prevent any uncertainty.
Living under the same roof during the separation period
Living under the same roof during separation is sometimes necessary for financial, family, or logistical reasons. If you and your ex are separated under one roof, it is usually necessary to provide an affidavit outlining these changes and explaining why cohabitation continued despite the separation.
Calculating the 12-month separation period
Many couples attempt reconciliation during the separation period. If you recommence your daily lives as a married couple but then separate again, the time already spent apart may still count toward the required period. The Family Law Act 1975 (Cth) makes provision for a reconciliation period of up to three months without restarting the 12-month separation requirement. For example, if you are separated for three months, reconcile for one month, and then separate again, only the remaining nine months need to be completed. However, if the reconciliation lasts over three months or you reconcile more than once during the 12 months, the separation period must start anew.
Courts recognise that physical intimacy is only one aspect of a marital relationship, and occasional encounters do not, on their own, indicate reconciliation. The focus is on whether the couple has genuinely resumed their marital life meaningfully.
Exceptions to the 12-month rule
While the 12-month separation rule is a fundamental requirement for divorce, every situation is unique, and sometimes, exceptional circumstances require flexibility. The courts recognise that the standard separation period may not apply in some instances, and alternative legal options—such as an annulment—may be more appropriate. If a marriage was entered into under fraudulent circumstances or through coercion, the court may declare it void, allowing the affected party to move forward without needing to meet the standard separation period.
For those navigating immigration or visa-related challenges, the breakdown of a marriage brings added layers of complexity. Separation may create significant uncertainty or hardship if a spouse relies on the relationship for legal residency. In these cases, the court carefully considers the individual circumstances to ensure fairness and legal protection.
Determining the date of separation can also be especially challenging when one spouse is affected by cognitive impairment or a serious mental health condition. If dementia or a mental illness has impacted a partner’s ability to acknowledge or participate in the separation process, the court may look at medical evidence and witness testimony to establish when the relationship truly ended.
Similarly, in divorce applications involving domestic violence or extreme hardship, the court prioritises the safety and well-being of those affected. If a spouse has been forced to leave their home to escape harm, the court may recognise that separation began the moment they left, even if they were unable to communicate their intent formally.
Counselling requirements for marriages lasting less than 2 years
One of the few exceptions to the 12-month separation rule is if you have been married for less than 2 years. If you have been married for less than 2 years, you and your spouse must attend counselling before filing your application. This measure aims to explore the possibility of reconciliation and ensure that both parties fully understand the implications of divorce. The two-year period is calculated from the date of marriage to the date of divorce application. A counselling certificate confirming that you and your spouse have attended counselling must be filed along with your divorce application. This document, known as the Counselling Certificate, serves as proof that both parties have engaged in the required counselling process before proceeding with the divorce.
If joint counselling is not possible or appropriate, such as in cases involving domestic violence or if one spouse refuses to participate, you can seek an exemption by filing an affidavit explaining why counselling was not attended. The court will then consider whether to grant permission to proceed with the divorce application without the counselling certificate.
If you are facing an unusual or complex situation, you don’t have to navigate it alone. Seeking professional family law advice can help you understand your rights, explore your options, and find the best way forward.
Once divorce eligibility is established, the next step is ensuring the Australian legal system has jurisdiction to process your application.
Jurisdiction requirements
Jurisdiction plays a crucial role in determining whether a person is eligible to apply for divorce in Australia. To proceed with a divorce application, at least one party must have a legal connection to the country. This means that either spouse must be an Australian citizen, a permanent resident, or have been living in Australia for at least 12 months before filing.
Citizenship can be established through birth, descent, or obtaining Australian citizenship. Permanent residency applies to those who hold a visa, granting them the right to live in Australia indefinitely. For individuals who do not fall into either of these categories, proving continuous residence in Australia for at least a year before filing is essential. This requirement ensures that the Australian legal system has jurisdiction over the marriage and its dissolution.
A divorce application can still proceed in Australia if one spouse lives overseas while the other meets the jurisdictional requirements.
Proof of marriage
Before granting a divorce order, the court requires official documentation to confirm that a legally recognised marriage exists. Obtaining a marriage certificate is straightforward for many, but the step can be more complicated for those who were married overseas or have lost their documents. If a marriage certificate is unavailable, alternative documentation such as statutory declarations or other official records may be required.
If the original certificate has been lost or misplaced, a replacement can be obtained from the relevant registry office.
A foreign marriage certificate must be submitted as evidence if you were married overseas. If the marriage certificate is not in English, it must be accompanied by an official translation. An accredited translator must complete the translated document, and an affidavit must be provided confirming the accuracy of the translation. The translator should prepare this affidavit and include their qualifications, a statement affirming that the translation accurately represents the original document, and a copy of both the translated and original certificates.
In cases where a marriage certificate cannot be obtained, additional steps may be required to establish proof of marriage. This can include presenting other official records, statutory declarations, or seeking legal advice on alternative ways to satisfy this requirement. Ensuring that all necessary documents are properly prepared and submitted will help avoid unnecessary delays in the divorce process.
Additional considerations for overseas marriages
The Court can still end marriages in Australia if you were married overseas, provided that at least one party meets the jurisdictional requirements. The first consideration is the legal validity of the marriage under Australian law. If the marriage was legally recognised in the country where it took place and does not contravene Australian laws, it is generally considered valid for divorce proceedings.
Arrangements for children in the divorce application
When a divorce involves children under 18, the court has an obligation to ensure that appropriate arrangements have been made for their care and welfare. Before granting a divorce order, the court will review the proposed parenting arrangements to confirm that the child’s needs are met. This includes assessing where the child will live, how parental responsibilities will be shared, and how communication will be maintained between the child and both parents.
While there is no requirement for a formal parenting plan, the arrangements must be documented in writing and submitted with the divorce application. In cases where there are serious disputes over custody, allegations of abuse, or concerns about the child’s safety and well-being, the court may appoint an Independent Children’s Lawyer (ICL) to represent the child’s best interests.
The court’s primary focus is always on the best interests of the child. It considers stability, emotional well-being, and access to both parents, provided it is safe and appropriate. If both parents agree on a parenting plan that supports the child’s welfare, this will generally be accepted without further intervention. However, if there are concerns about the arrangements—such as disputes over custody, living conditions, or parental responsibilities—the court may require additional evidence before finalising the divorce. Understanding how to get a fair child custody arrangement is essential when there are disputes over parenting arrangements.
Trusted divorce advice from Arcadian Legal
Divorce is never easy, but you do not have to navigate it alone. Understanding the divorce eligibility requirements in Australia is essential before beginning the legal process. In Australia, your divorce will be granted as long as you meet the legal criteria, including the 12-month separation period, jurisdictional requirements, and proper documentation.
While the process is designed to be straightforward, every situation is unique, and complexities can arise—especially when children, overseas marriages, or exceptional circumstances are involved. Seeking trusted legal advice ensures you understand your rights, complete your application correctly, and move forward with clarity and confidence.
If you need advice on your next steps, please contact Arcadian Legal for a confidential discussion.
