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Divorce and separation

Commonly asked questions about divorce and separation

You will need to prove to the court that you were legally married by producing a copy of your Marriage Certificate. You will also need to satisfy the court that your relationship has broken down and there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months before filing for divorce.

The court can grant a divorce provided you or your spouse meet one of the following criteria:

  • You consider Australia to be your home and intend to live here indefinitely
  • You are an Australian citizen by birth or descent
  • You are an Australian citizen by grant of Australian citizenship
  • You ordinarily live in Australia and you lived here for the 12 months prior to applying for a divorce

Yes, but you will need to satisfy the court that you are no longer living as husband and wife. Someone outside the relationship may be required to give evidence to confirm what you say about the separation circumstances if your partner or spouse disagrees with your version. Factors to prove that you are separated might include things like the absence of a sexual relationship, you and your spouse each doing your own chores (eg cooking and cleaning), and/or financial independence.

If there are no children of the marriage under the age of 18, then neither party needs to attend the divorce hearing.

If there are children under 18 but you and your spouse have made a joint application for divorce, then neither of you needs to attend the hearing.

However, if only one party made the divorce application, and there are children of the marriage under 18, then the applicant is required to attend the hearing (the other spouse is not required to attend but they can if they wish.) In the event that the other spouse has filed a “Response to Divorce” application and is opposing the divorce, then they will need to attend the hearing. You can apply to the court to appear by telephone if it is inconvenient or expensive for you to travel to the court.

You can generally only oppose the divorce application if there has not been the required 12 month period of separation before the application was filed, or if the court does not have jurisdiction to grant the divorce.

Yes, as long as you or your spouse:

  • Consider Australia to be your home and intend to live here indefinitely
  • Are an Australian citizen by birth or descent
  • Are an Australian citizen by grant of Australian citizenship
  • Ordinarily live in Australia and have lived here for the 12 months prior to applying for a divorce

Marriage separation does not revoke (cancel) your will. If you pass away and have not updated your will following your separation, then your spouse may inherit any property you had left to them, or act as executor of your will if you had so named them.

If you divorce, your former spouse can no longer act as executor of your will, and any gift you left them in your will is void. But if you had appointed your former spouse as trustee of property left on trust for beneficiaries including children of your marriage, that appointment is not cancelled just because you have divorced.

You should make a new will following a separation or divorce, so that your intentions concerning your former spouse are clearly documented.

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