Separation and Divorce in Australia


It is the sad truth that many promising relationships just simply do not work out. That person we thought we knew and loved has gone, replaced by someone we really don’t know and can no longer stand to be close to. One party will make the decision that they can take no more and someone is going to have to go. Thus begins the joys and tribulations of the separation and possibly, if the couple were married, that messy word, divorce. Divorce law is extremely complicated and is covered by the Family Law Act of 1976. Given the nature of its complexity, if you are in the position of considering a divorce, or are in a relationship with joint assets, the best advice is to go and talk to your local lawyer before you do anything else. While they may have the best intentions at heart, any advice you receive from friends or colleagues is likely to be incorrect and can set you on a path to disaster.

The basics of the divorce

Under Australian Law, you have to be separated for a minimum period of one year, before you can apply for a divorce. It is possible to obtain a divorce, even if the other party objects, though this will require a divorce hearing in court, subject to divorce application papers having been served on the other party, and the one year minimum period having expired. The Family Law Act established what is known as a “no fault divorce” system, meaning that no side has to accept responsibility for the break up, simply that the relationship has irrevocably broken down. Any terms of divorce must provide proof that adequate arrangements for the welfare of any children aged under 18 has been made.  If both parties are in agreement, which is the preferable scenario, you may apply for a Joint Application for Divorce, which will be granted as long as you meet the conditions. It should be noted that it is possible to be “separated” even if the two parties have continued to live under one roof.

Dealing with the time frame

Divorce lawyers from Melbourne to Mooloolaba can help you with the legalities of a divorce, but there is no need to wait the whole year before you do anything. You can deal with issues such as property and matters pertaining to the children immediately. Indeed, there is no legal obligation upon you to actually file for divorce at all, so once you have solved the property and custody issues, you are well within your rights to leave things there. If you do not intend to remarry and things are relatively amicable with that person you just can’t live with anymore, many do not feel the need to file for divorce. Once a Divorce Order has been issued by the court, there is a period of one month and one day before it becomes legally final, so it is inadvisable to finalise any arrangements to remarry before the date the court has fixed. It all sounds remarkable simple, but the truth is that it is not. The first thing you should do before ending your marriage, is to discuss everything with your local legal professional.