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In Australia you cannot file an Application for Divorce in Court as soon as you separate.
As well as having had to have been separated for at least 12 months, there are other requirements you must satisfy before you will be entitled to file your Divorce Application in Court in Australia.
All of the following must apply to you for you to be able to file your Divorce Application and sucessfully obtain a Divorce in Australia:
As well as being able to satisfy everything on the above list of requirements, you need to have an appropriate jurisdictional connection with Australia to be able to get an Australian Divorce.
You can have a jurisdictional connection with Australia in one of 3 ways.
In addition, to apply for a Divorce in Australia either you or your husband/wife must:
You must satisfy all of the requirements listed above as well as one of the three jurisdictional connections with Australia, to be able to get a divorce in Australia.
If you meet all the legal requirements to get a divorce in Australia then see our checklist to follow how to file for divorce.
If you have been married for less than 2 years there is a requirement that you attend counselling before you are eligible to apply for a divorce. If this applies to you, you can read more in our Fact Sheet Marriages less than Two Years.
If you reconciled after your separation and were reconciled for 3 months or more, then the 12 month period starts after the reconciliation.
If you were reconciled for less than 3 months, you can usually add up the period before the reconciliation and the period after the reconciliation to make the total of at least 12 months.
If some or all of your 12 month separation period was spent living under the same roof, the court will require further information from you as evidence to prove you were in fact separated before granting your Application for Divorce.
With your Divorce Application, you will usually have to file an Affidavit stating all the facts that prove you were separated despite the fact you were both still living under the same roof.
It will be changes in the way you related to each other during your marriage and after your separation that will be able to prove to the court that your marital relationship was over and you were separated, even though you were living under the same roof.
This might include:
If you need to file an Affidavit about your separation under the same roof with your Divorce Application, then you can read how to do so in our fact sheet How to prepare an Affidavit.
If you got married overseas you can still apply for a Divorce in Australia. Read our fact sheet about Australian Divorce requirements for marriages overseas, to see whether additional requirements will apply to you.
Having a checklist of steps you need to follow so you can do your Divorce yourself without paying a lawyer will save you some divorce costs. Our fact sheet A list of steps you need to take to get a Divorce gives you an easy to follow procedure to do your own divorce.
If you are applying for a Divorce you will want to know costs and the length of time it is likely to take. Read more in our fact sheet explaining How much will a Divorce cost and how long does it take.
Courts do not consider all issues (such as property settlement, parenting arrangements, child support etc) when granting a divorce. The issues the Court looks at are explained in our fact sheet What things will a Court want to know to grant a Divorce.
If you are doing your Divorce yourself then you need to be prepared for what will happen on the day your divorce is heard in Court. We have a fact sheet explaining What happens at the Divorce Hearing.
Issues surrounding your children, money, finances and property will usually be dealt with first once you have decided to get a Divorce, but you should also know what is explained in our fact sheet How does Divorce affect your Will, Superannuation, Life Insurance and family after death.
Michelle Beatty, Senior Lawyer
Other Questions answered in the Divorce Section
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