Assessing eligibility for a Divorce under the Family Law Act:
The Family Law Act 1975 (Cth) is a comprehensive piece of federal legislation which works to define & address the legal procedures & practices that govern relationships of a domestic nature, including but not limited to, marriages, de facto partnerships, parentage, and various other family dynamics.
Divorce is commonly defined as the legal termination of a marriage in circumstances where both parties to a marriage are still alive but no longer wish to be legally recognised as married. The procedures and practices surrounding the process of divorce are set out in the Family Law Act. Unbeknownst to some, married couples in Australia are not eligible for a divorce immediately upon separation. The Act sets out one’s eligibility to apply for a Divorce Order and considers factors such as jurisdiction, the validity of the marriage, how long the parties have been married for, the period of separation, and the interests of any children of the marriage. A couple will be eligible to file an application for divorce in Australia if they satisfy all of the following requirements:
1. Jurisdiction
In circumstances where a couple was married overseas, the Family Law Act still allows for that couple to seek a Divorce Order in Australia as long as at least one of the parties to the marriage:
- Regards Australia as their home and intends to live here indefinitely;
- Is an Australian citizen (by birth, descent, or grant of citizenship); and/or
- Ordinarily lives in Australia and has done so for at least 12 months before filing for divorce.
2. Validity of the marriage
A couple must be able to prove that their marriage was legally valid. This can be proven by the provision of their government-issued marriage certificate, or in exceptional circumstances where a marriage certificate cannot be provided, by way of affidavit.
3. Period of Separation
A couple must be able to prove that they have been separated for a period of at least 12 months prior to applying for a divorce. This requirement is imposed to allow time for the potential reconciliation of parties so that the Court can be satisfied that that there is an irreparable breakdown of the marriage and that the separation is final.
4. Children
If there are children of the marriage who are under 18 years old at the time a Divorce Order is sought, the Court will need to be satisfied that arrangements have been made in relation to the care, maintenance and welfare of those children. In circumstances where no arrangements for the children have been made, the Court will need to be satisfied that there is good reason for this.
5. Marriages of less than 2 years
In circumstances where parties have been married for a period of less than two years before filing an application for divorce, both parties will need to attend marriage counselling and provide evidence of such by way of a counselling certificate.
If you are unsure whether you meet this eligibility criteria, or you require assistance with filing your Divorce Application, please contact our office to arrange an appointment with one of our solicitors.
