If your marriage occurred overseas, you can still apply for divorce in Australia if either you or your spouse:
- regard Australia as your home and are an Australian citizen or resident; or
- are an Australia citizen by birth; or
- are an Australia citizen by grant of an Australian citizenship; or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
In order to apply to the Federal Circuit Court of Australia for a divorce, the Court needs to be satisfied that:
- Your marriage is valid;
- You have been separated for at least 12 months and there is no prospect of reconciliation;
- There is an irretrievable breakdown of the marriage;
- If you have children who are under 18 years of age, that adequate arrangements have been made for their future care.
If the parties are amicable and have arrived at the decision to apply for a divorce together, then a joint application can be made. A joint application negates the need for parties to attend a divorce hearing, regardless of whether there are children under the age of 18.
If you do not have the consent of the other party (or in circumstances where you are not in contact with the other party or are not aware of their contact details) a sole application will have to be made. For sole applications, the time frames are extended to allow for a response to be filed by the other party and there may be other requirements depending on your circumstances. You should also bear in mind that if there are children under the age of 18 you will need to attend the divorce hearing.
Valid Marriage
In order to satisfy the Court that your marriage is valid, if you were married in Australia or overseas, a copy of your marriage certificate is generally sufficient. If your marriage certificate is not in English it will be to be translated by a qualified translator in order for it to be attached to your application to the Court.
However, if you were married overseas and do not have a copy of your marriage certificate, you will need to provide evidence to the Court that your marriage was valid in lieu of providing a copy of your marriage certificate (which isusually provided by way of affidavit).
If an affidavit is required, it must be in the appropriate form and will need to demonstrate to the Court that your marriage would be recognised as valid under Australian law and explain why you do not have your marriage certificate at hand.
Furthermore, you will also need to satisfy the Court that you have made reasonable attempts to locate your marriage certificate in the first instance, and have also made reasonable attempts to order a replacement marriage certificate.
Our experienced lawyers are happy to assist in drafting the requisite affidavit should you need this to accompany your application.
12 Months Separation
In order to apply for a divorce in Australia, the Courts will require that you and your spouse have been separated and lived apart for at least 12 months and 1 day. Affinity Lawyers can help you calculate this date and advise you in relation to any of the exceptions.
Irretrievable Breakdown
This requirement is generally satisfied by evidencing that the parties have separated, and since separation have lived separately and apart for a continuous period of not less than 12 months and one day prior to the divorce application being made. There are various exceptions in relation to separation under one roof (due to financial or other circumstances) and short periods of reconciliation not exceeding 3 months. If this applies to you, you should contact one of our friendly Gold Coast lawyers to discuss your individual circumstances.
Children Under 18
If there are children under the age of 18, then the Court also needs to be satisfied that there are adequate arrangements for their future carte prior to making a divorce order. This generally includes details of how each party will spend time with the children, their general health and living arrangements, schooling situation and other relevant factors.
If the divorce application is joint, there is no need to attend the divorce hearing. If it is a sole application then the applicant will need to attend the hearing.
Seeking Legal Advice
It is advisable that before undertaking the divorce application process you seek legal advice. A lawyer can help you to understand the relevant rights and responsibilities that you may need to consider prior to lodging an application and the law that applies to your particular case.
Please contact our experienced and friendly Family Law Team at Affinity Lawyers today on 07 5563 8970 to discuss your query.
