Divorce is the official legal ending of a marriage. There are several difficulties that can arise during the divorce process. These include concerns surrounding divorce applications, requirements for divorce orders and divorces that involve children under the age of 18.

Divorce applications

You need to file an Application for Divorce if you want to apply for a divorce. You can file a:

• sole application, or
• joint application – if you and your spouse agree to divorce

If you and your spouse file a joint application, one of you will be applicant one and the other will be applicant two.

If you file a sole application, your spouse is the respondent, and you are the applicant.

If you are making a sole application, you must get your supporting document, complete an Application for Divorce, pay the filing fee, and serve your application on your spouse.

De Facto Relationships

Due to the significant difference in the legal effect of marriages compared to de facto relationships, it is critical to be properly informed about the legal implications of any non-married close personal relationship.

A de facto relationship in most definitions includes a relationship between:

• two adults (over the age of 18 years);
• who are not legally married to each other; and
• are not related by family; and
• having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Under current law, individuals leaving an unsuccessful de facto relationship can pursue property settlements in the same way as separating married couples lying on the same law and Court systems (excluding Western Australia). This extends to same-sex de facto couples.

The law, as it currently stands, permits de facto couples to reach an agreement about property and financial issues upon relationship breakdown. The presence of a financial agreement is encouraged because the legal implications arising from the absence of an agreement can be significant and unexpected.

Same-Sex Relationships

There are no differences in divorce proceedings between same-sex and heterosexual marriages since same-sex marriage has been given the same legal status as heterosexual marriages.

Those leaving an unsuccessful same-sex relationship to pursue property and financial settlements following a separation use the same laws and Court as a married couple. It is also possible for same-sex couples to apply for child support agreements with the Child Support Agency.

Nullity – Invalid Marriages

When there is a question about the legal validity of the marriage, a marriage can be declared invalid by a court.

The Federal Circuit and Family Court of Australia can declare a marriage invalid.

Declaration of nullity

A declaration of nullity (annulment) is a finding that there was no legal marriage between the parties, even though a marriage ceremony may have taken place. The Court can declare a marriage invalid on the grounds that:

• one or both of the parties were under-age and did not have the necessary approvals, or
• one or both of the parties were already married at the time, or
• one or both of the parties were forced into the marriage under duress.

Requirements for a divorce order

Divorce Order

The Judge or Registrar will hear from you and your spouse, then decide whether to grant a divorce. 

When the Divorce Order is made, your legal status will change from married to single.

When a Divorce Order will be made

The Court will make a divorce order if they are satisfied that:

• you and your spouse are legally married 
• your marriage has irretrievably broken down
• you and your spouse have made appropriate arrangements for the care of your children, if relevant.
• you and your spouse were separated for at least 12 months when the Application for Divorce was filed
• the Application for Divorce was correctly served on your spouse

The Court will not grant you a divorce if they are not satisfied that all of the above criteria have been met.

Granting a divorce where there are children under 18 years of age

If there are children of the household under the age of 18 years, the court must be satisfied that proper arrangements in all the circumstances have been made for their care in order to grant a divorce.

There are a number of details related to the child that the court will look at when determining whether an application for divorce should be granted:

• the location and who the children will live with;
• supervision arrangements;
• how regularly the children will see the parent they do not reside with;
• what school the children are attending and the year level;
• the means in which the family obtains financial support;
• any health or medical issues;
• the amount of child support being paid.

When divorce order takes effect

A Divorce Order takes effect one month and one day after it is made.

You need to give a copy of your Divorce Order to the marriage celebrant before you can get remarried.

Avoiding Court

Filing a joint application will remove the need to attend court. However, if there are issues with your divorce application, such as the application contravening a court-approved format, or difficulty with service, then the parties may need to attend court.

The Irrelevance of Who Files for Divorce First

It does not matter who files for divorce first. However, once a divorce order is made, an application for a property must be made within a year of the divorce order.

While the order of divorce application is irrelevant, the order may reap strategic benefits such as allowing one party to directly respond to another application. However, these benefits are case-specific and any benefit elucidated cannot, with certainty, be applied universally to every case. 

Importance of Disclosure

All relevant matters should be disclosed to a lawyer. Open communication will allow legal representatives to act in the best interests of their clients and provide timely advice.

Lawyers are trained to guide parties through this difficult process. They are also bound by a duty and a responsibility to act in a party’s best interest. All information provided to legal professionals will also remain confidential unless contrary to the express wishes of their clients. 

What do you do when one spouse wants a divorce and the other does not?

One party can file for divorce unilaterally. In Australia, Family Law recognises ‘no fault’ divorce which means that one party no longer is required to have done something wrong for a divorce to be permitted by law. An individual can divorce if they wish to do so, despite the objections of the other party.

In cases where a party will not agree to a divorce, a sole divorce application will need to be filed.

What to avoid during a divorce

The emotionally-charged nature of a divorce can reduce the ability to make informed decisions. This increases the risk of a mistake that may have far-reaching implications during divorce proceedings. Not engaging in verbal battles with the opposite party is highly recommended. Such behaviour may be brought into evidence, potentially influencing an outcome.

Social media should be avoided. Since posts can be easily accessed, they can be detrimental to a party’s case.