For anyone in Australia navigating the end of a marriage, understanding the legal foundation for dissolving that marriage—the grounds for divorce Australia—is the crucial first step. Unlike the past, or unlike other countries, Australia operates under a no-fault divorce system, which was revolutionised by the Family Law Act 1975 (Cth). This change removed the need to prove blame, fault, or specific misconduct like adultery or cruelty. Consequently, the legal requirement for obtaining a divorce in Australia is refreshingly straightforward and singular. It’s an administrative process focused purely on the factual breakdown of the marital relationship. From my experience, grasping this singular requirement significantly demystifies the entire divorce application process for our clients.
Featured Definition: The Grounds for Divorce Australia
The only grounds for divorce Australia accepts is the irretrievable breakdown of the marriage. This single ground is proven to the Federal Circuit and Family Court of Australia (FCFCOA) by providing evidence that the parties have lived separately and apart for a continuous period of at least 12 months and one day immediately before the divorce application is filed, and that there is no reasonable likelihood of resuming married life.
The Single Legal Requirement: Irretrievable Breakdown
The Family Law Act 1975, specifically Section 48, establishes the single legal test for divorce in Australia: the irretrievable breakdown of the marriage. This concept is legally evidenced by one key factual requirement: the separation period.
The 12-Month and One Day Rule
The only evidence the Court requires to be satisfied that the marriage has broken down irretrievably is that you and your spouse have been separated, and have lived separately and apart, for a continuous period of at least 12 months and one day immediately preceding the date of filing the Application for Divorce Form.
This period is non-negotiable and is the time limit from which all divorce applications must be timed.
- No-Fault Principle: The grounds for divorce Australia does not consider who initiated the separation, who was at fault, or whether one party was unfaithful. The Court’s only concern is the factual state of the relationship’s breakdown over the required period.
- Intention and Action: Separation legally occurs when one or both parties form the intention that the marriage is over and communicate that decision by acting on it, ceasing to live together as a couple. It does not require both parties to agree.
Jurisdictional Prerequisites
In addition to the grounds for divorce Australia requires, the Court must be satisfied it has jurisdiction to hear the matter. Either you or your spouse must satisfy one of the following criteria:
- Be an Australian citizen.
- Be ordinarily resident in Australia and have lived here for at least 12 months immediately before filing for divorce.
- Be domiciled in Australia (meaning you regard Australia as your home and intend to live here indefinitely).
These criteria ensure that the Federal Circuit and Family Court of Australia (FCFCOA) is the appropriate forum for your legal matter.
The Complexity of Separation Under One Roof
While the grounds for divorce Australia uses is simple, proving the separation period can become complex if you have continued to live at the same address as your former spouse. This is known as separation under one roof.
What is Separation Under One Roof?
Australian family law acknowledges that, due to financial necessity, childcare arrangements, or other reasons, a couple may cease to live as a married couple but remain in the same house. To prove that the marriage has broken down irretrievably under these circumstances, you must demonstrate a significant factual change in the nature of your relationship.
| Aspect of Relationship | Before Separation (as a couple) | After Separation (under one roof) |
| Sleeping | Shared bedroom/bed. | Separate bedrooms (mandatory change). |
| Finances | Joint accounts for all expenses; shared budgeting. | Separate bank accounts; paying separate bills; no shared financial dependency. |
| Domestic Duties | Sharing or performing duties for one another (cooking, laundry). | Preparing separate meals; doing own laundry; ceasing shared social and domestic life. |
| Social Life | Attending events together; known publicly as a couple. | Socialising separately; informing friends/family of the separation. |
The Evidence Required to Prove Separation
If any part of the 12-month separation period occurred under one roof, the FCFCOA requires additional evidence beyond the sworn statement in the Application for Divorce. This is a crucial administrative step.
- Applicant’s Affidavit: You must file a detailed affidavit outlining the date of separation, the reasons for remaining in the same home, and the specific changes to the domestic, social, and financial arrangements that prove the relationship ceased.
- Corroborating Affidavit: You must file a supporting affidavit from a third party (e.g., a friend, family member, or neighbour) who has observed or been informed of the separation while you were living together. This independent evidence is required to corroborate your claim.
From my experience, failure to provide this corroborating evidence, or providing vague evidence of the change in relationship, is the number one administrative reason for the FCFCOA to adjourn a divorce hearing, causing significant delay and further cost.
Reconciliation and the Continuity of Separation
The law recognises that people may attempt to reconcile after separating. This is covered by Section 50 of the Family Law Act 1975.
The 3-Month Reconciliation Rule
If, after separating, you and your spouse resume cohabitation (live together again as a married couple) and that period of resumed cohabitation lasts for three months or less, the initial period of separation can be added to the period of separation after the reconciliation ends. The 12-month clock does not have to restart entirely.
- Example: If you separate for 6 months, reconcile for 2 months, and then separate again, you only need an additional 6 months of separation to meet the 12-month threshold (6 months + 6 months = 12 months).
- Break in Continuity: If the reconciliation lasts for more than three months, the entire 12-month separation period must start again from the date of the second separation.
This rule provides a practical allowance for couples who genuinely attempt to repair the marriage before making the final decision that the grounds for divorce Australia requires—irretrievable breakdown—has occurred.
The Final Divorce Requirement: Children
If there are children of the marriage under the age of 18, the FCFCOA cannot grant the divorce order unless it is satisfied that proper arrangements have been made for the care, welfare, and development of those children [Family Law Act 1975 (Cth) s 55A].
- Administrative Requirement: The Application for Divorce Form requires you to detail the current living arrangements, financial support, and contact schedule for the children.
- No Enforceable Orders: While the Court must be satisfied with these arrangements, the divorce order itself does not create enforceable parenting orders or child support orders. These require separate applications or agreements (e.g., Consent Orders or Child Support Agreements).
To ensure your divorce application is seamlessly compliant with all FCFCOA requirements, including proper evidence of separation and arrangements for children, consult our experts: Seek Family Law Guidance.
People Also Ask (PAA) about Grounds for Divorce Australia
Q1: Does adultery count as grounds for divorce Australia?
No. Since the introduction of the no-fault system in 1975, adultery is not recognised as one of the grounds for divorce Australia uses. You do not need to mention or prove adultery in your divorce application; only the 12-month separation period is relevant.
Q2: Can I apply for divorce if my spouse refuses to agree to it?
Yes. The grounds for divorce Australia accepts is based solely on the factual breakdown of the marriage, proven by 12 months of separation. If you have been separated for that period, you can file a Sole Application for Divorce, and the Court will grant the divorce order even if your spouse opposes it, provided the jurisdictional and separation requirements are met.
Q3: When does the 12-month separation period begin?
The 12-month separation period begins on the day that one or both parties decide the marriage is over and communicate that decision by acting on it—ceasing to live together as a married couple. The date is generally the day one party moves out, or the day one party definitively communicates the end of the relationship if they remain under one roof.
Q4: How long after separation can I finalise property settlement?
The time limit for filing an application for property settlement with the FCFCOA is 12 months from the date the Divorce Order becomes final. It is important to remember that the divorce application only ends the marriage; it does not finalise financial arrangements.
FAQs: Expert Insights on the Divorce Application
Q1: If I was married overseas, do the grounds for divorce Australia require still apply?
Yes, the grounds for divorce Australia requires (irretrievable breakdown proven by 12 months separation) apply regardless of where you were married, provided the FCFCOA has jurisdiction (i.e., you or your spouse are an Australian citizen or ordinarily resident here). You will need to provide a copy of your marriage certificate and an official translation if it is not in English.
Q2: Are there any special requirements for marriages of less than two years?
Historically, there was a requirement for mandatory marriage counselling if married for less than two years. This requirement no longer applies. As of recent changes to Australian law, the only requirement remains the 12-month separation period, regardless of the length of the marriage.
Q3: What is the risk of an unfinalised divorce if I have a new relationship?
If your divorce order has not been granted and become final (i.e., one month and one day after the hearing), you are still legally married to your former spouse. Attempting to marry a new partner before the divorce is final constitutes bigamy and is a criminal offence under Australian law.
Q4: Can the court make a divorce order if there is a possibility of reconciliation?
No. The Family Law Act 1975 explicitly states that a divorce order shall not be made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed. While the Court generally relies on the parties’ sworn statements, if there is evidence of genuine reconciliation attempts beyond the 3-month rule, the application may be dismissed.
Q5: What is the difference between a Sole and a Joint Application for divorce?
A Sole Application is filed by one party, requires formal service of documents on the other party, and typically requires the Applicant to attend the hearing if there are children under 18. A Joint Application is signed by both parties, waives the requirement for formal service, and usually does not require either party to attend the hearing, making it simpler and faster.
Conclusion: Simplified Divorce, Serious Procedure
The grounds for divorce Australia requires is simple: the irretrievable breakdown of the marriage, evidenced by 12 months and one day of continuous separation. This no-fault system is designed to simplify the legal process by removing blame. However, while the grounds are simple, the administrative compliance—particularly proving separation under one roof and ensuring proper arrangements for children are documented—is where errors occur.
A precise, error-free application is the key to an efficient divorce. Do not let procedural mistakes prolong the end of your marriage.
For expert guidance on ensuring your divorce application meets all FCFCOA requirements and is filed seamlessly, seek professional advice on your family law matter from our dedicated team.
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