Divorce Process in Australia Explained

The breakdown of a marriage is a challenging personal experience. In addition to the emotional adjustments, there are legal steps that must be taken to formally end the marriage. In Australia, the process of obtaining a divorce is governed by the Family Law Act 1975 (Cth) and is handled through the Federal Circuit and Family Court of Australia.

Here is a straightforward explanation of how the divorce process works in Australia.

1. The Principle of No-Fault Divorce

Australia has a 'no-fault' divorce system. This means the court does not consider the reasons why the marriage ended, and neither party has to prove that the other was responsible for the breakdown. The only legal ground for a divorce is that the marriage has broken down irretrievable.

2. The 12-Month Separation Requirement

To satisfy the court that the marriage has broken down irretrievably, you must demonstrate that you and your spouse have been separated for a continuous period of at least 12 months before filing the application.

Separation occurs when one or both parties decide the marriage is over and act on that decision. It is possible to be 'separated under one roof' (living in the same house but ending the marital relationship), but you will need to provide additional evidence and affidavits from independent witnesses to prove this to the court.

3. Proper Arrangements for Children

If there are children of the marriage who are under the age of 18, the court will not grant a divorce order unless it is satisfied that proper arrangements have been made for their care, welfare, and development. This includes their living arrangements, schooling, and financial support. Note that a divorce application is separate from custody disputes; the divorce simply formally ends the marriage.

4. The 12-Month Time Limit for Property Settlements

A critical detail that many people overlook is that the granting of a divorce order starts a strict 12-month countdown. You have exactly one year from the date of your divorce order to file an application for property settlement or spousal maintenance. If you miss this deadline, you will need to seek special leave from the court to proceed, which is costly and not guaranteed.

5. Nepal-Specific Legal Considerations

For Nepali nationals or individuals married in Nepal now living in Australia, cross-border considerations apply. Nepali divorce laws require different fault- or consent-based grounds, and an Australian divorce order must be formally recognized in Nepal if there are assets or legal statuses to resolve there.

How We Can Help

At Yantra Legal, we guide clients through the divorce application process, ensuring all documents are filed correctly, service requirements are met, and custody disclosures are handled properly. Principal Solicitor Krishna Giri's dual admission in Australia and Nepal also provides unique expertise for cross-border divorces. Contact us today for a confidential discussion.