Overview

Getting a Divorce

“Divorce” is not to be confused with “property settlement“.

They are two different and separate legal processes. Divorce is the official end of the marriage of two people and can take place any time after 12 months and one day from the time of separation. It may or may not be done in conjunction with a property settlement. A property settlement is the formal splitting of the marital pool – the assets and liabilities that belong to the parties to the marriage (also applies to de facto couples’ property).

Grounds of Divorce

The ground for divorce is the “irretrievable breakdown of marriage, established by evidence of the parties having lived separately and apart for a continuous period of 12 months immediately before filing of the application. [s 48 FLA]

Jurisdiction

Divorce proceedings may be commenced in Australia if at the time of filing, either spouse has:

Australian citizenship;
Australian domicile; or,
been ordinarily resident in Australia for the past year. [s 39(3)FLA]

Same-Sex Divorces

Since 9 December 2017, same-sex couples can also obtain an Australian divorce if they meet the general requirements of the Family Law Act. See:

Critical Time-frames

An Application for Divorce cannot be made until after 12 months and one day from the date of separation.

It is important to note here that if you or your spouse intend to do a property settlement, then the property settlement MUST be commenced within 12 months of your divorce becoming final (decree absolute). If settlement is to be done by way of Consent Orders, these must be agreed, drafted and filed in the Court within 12 months of your divorce. If agreement cannot be reached and Court proceedings are needed to determine your property dispute, the Initiating Application must be filed with the Court within 12 months of divorce (some rare exceptions apply).

These concepts and processes are detailed in the Family Law Tool Kit – PROPERTY Consent Orders module to be released soon.

The Process

The process of obtaining a divorce is relatively straightforward. It can be done by way of a joint Application with your spouse or by either of you separately. You do not need the other person’s consent to divorce.

In most cases, the Application for Divorce can be filled in online at the Federal Circuit Court website http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/home. If it is a joint application, service will not be required, but where it is a sole application, the other party will need to be “served” with the filed and sealed Application. There are particular rules about service of documents which are explained fully during our Step-by-step section of this tool kit.

Once the Divorce Application has been filed and served (as applicable), a Court date will be allocated for your matter to be heard. Where there are no children involved, or where there are minor children of the marriage but the Application is joint, you will not be required to attend this Court date. Provided all the documents are in order and the Court is satisfied that appropriate arrangements have been made for any children of the marriage, the divorce is granted and a “decree nisi” is issued. Three months later, the divorce takes effect and a “decree absolute” is issued.

Of course, this is a broad overview of the process only and all the variables and options that may apply to your particular circumstances will be explained in detail throughout the step-by-step part of the Tool Kit. So go ahead – click the green START button!

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Disclaimer, Privacy, Data Protection and Terms and Conditions

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Family Law Tool Kits and this website https://fltk.com.au are wholly owned and operated by Carolyn Reid Pty Ltd ACN 003 031 418, established 1985. Family Law Tool Kits provide education, information and procedural guidance for parties in family law matters. Our Tool Kits (also referred to as “Products”) use and refer to resources from the Family Court of Australia, the Federal Circuit Court, the Commonwealth Attorney-General’s Department and other authoritative sources, automatically filtered according to customer responses to key questions. We do not provide legal advice. Throughout our web site and within our Tool Kits, we strongly urge customers to seek independent legal advice, before, during or after using our Products and before signing anything. Indemnity Family Law Tool Kits takes no responsibility for how customers might use our Products, or any liability for adverse outcomes. Our customers are wholly and solely responsible and liable for any decisions or actions they might take based on the education, information and/or procedural guidance provided in our Tool Kits. By using our Products customers agree to indemnify Family Law Tool Kits and Carolyn Reid Pty Ltd from any liability whatsoever. Rights of Use of Products Purchase and payment of a Product secures access to the selected Product for the period specified in the Product description page(s). Our products are only available for personal use by individuals for their own family law matters. No license or authority is granted for the use of Family Law Tool Kits by a business, education institution or company. Family Law Tool Kits monitors customers’ access and use of the Products and reserves the right to terminate a customer’s membership access should improper or unauthorised use of the Products be detected. Refund Policy Family Law Tool Kits recommend that you consider carefully whether our Products are appropriate for your needs before purchasing. Should you be unsure of the suitability of any of our Products, please enquire at car@fltk.com.au prior to purchase. Family Law Tool Kits reserves the right to refuse refunds for Product purchases where the Product has been accessed or otherwise used for a period of three (3) days or more. Third Party Links Family Law Tool Kits provides links to third party websites which are not under the control of or maintained by Family Law Tool Kits. These links are provided only for our customers’ convenience and to the maximum extent permitted by law, Family Law Tool Kits will not be responsible for the content of such websites nor do we endorse or recommend any products or services displayed or offered on any linked websites.

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Part V—Jurisdiction of courts

Division 1—Jurisdiction in matrimonial causes

39 Jurisdiction in matrimonial causes

(1) Subject to this Part, a matrimonial cause may be instituted under this Act:

(a) in the Family Court; or

(b) in the Supreme Court of a State or a Territory.

(1A) Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) may be instituted under this Act in the Federal Circuit Court of Australia.

(2) Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) may be instituted under this Act in a Court of summary jurisdiction of a State or Territory.

(3) Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:

(a) is an Australian citizen;

(b) is domiciled in Australia; or

(4) Proceedings of a kind referred to in the definition of matrimonial cause in subsection 4(1), other than proceedings for a divorce order or proceedings referred to in paragraph (f) of that definition, may be instituted under this Act if:

(a) in the case of proceedings between the parties to a marriage or proceedings of a kind referred to in paragraph (b) of that definition in relation to a marriage—either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date; and

(b) in any other case—any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date.

(4A) In subsection (4), relevant date, in relation to proceedings, means:

(a) if the application instituting the proceedings is filed in a court—the date on which the application is so filed; or

(b) in any other case—the date on which the application instituting the proceedings is made.

(5) Subject to this Part and to section 111AA, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Family Court and on the Supreme Court of each Territory, with respect to matters arising under this Act in respect of which:

(a) matrimonial causes are instituted under this Act; or

(b) matrimonial causes are continued in accordance with section 9; or

(d) proceedings are instituted under regulations made for the purposes of section 109, 110, 111, 111A or 111B or of paragraph 125(1)(f) or (g) or under Rules of Court made for the purposes of paragraph 123(1)(r); or

(da) proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or

(e) proceedings are instituted under section 117A.

(5AA) Subject to this Part and to section 111AA, the Federal Circuit Court of Australia has, and is taken always to have had, jurisdiction with respect to matters arising under this Act in respect of which matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are instituted under this Act.

(5A) Subject to this Part and to section 111AA, the Federal Circuit Court of Australia has jurisdiction with respect to matters arising under this Act in respect of which proceedings are instituted under:

(a) regulations made for the purposes of section 109, 110, 111, 111A or 111B; or

(b) regulations made for the purposes of paragraph 125(1)(f) or (g); or

(d) proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ.

(6) Subject to this Part and to section 111AA, each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, with respect to matters arising under this Act in respect of which:

(a) matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are instituted under this Act; or

(b) matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are continued in accordance with section 9; or

(d) proceedings are instituted under:

(i) regulations made for the purposes of section 109, 110, 111, 111A or 111B; or

(ii) regulations made for the purposes of paragraph 125(1)(f) or (g); or

(iii) standard Rules of Court made for the purposes of paragraph 123(1)(r); or

(iv) Rules of Court made for the purposes of paragraph 87(1)(j) of the Federal Circuit Court of Australia Act 1999; or

(da) proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or

(e) proceedings are instituted under section 117A.

Note: Under section 39A of the Judiciary Act 1903, the jurisdiction conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court.

(7) The Governor-General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Part may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory.

(7AAA) Without limiting the generality of subsection (7), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following:

(a) proceedings of specified classes;

(b) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory;

(c) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way.

(7AA) A court of summary jurisdiction in a State or Territory shall not hear or determine proceedings under this Act instituted in or transferred to that court otherwise than in accordance with any Proclamation in force under subsection (7).

(7A) The Governor-General may, by Proclamation, declare that a Proclamation made under subsection (7) is revoked on and from a specified date and, on and after the specified date, this Act (including subsection (7)) has effect as if the revoked Proclamation had not been made, but without prejudice to the effect of the revoked Proclamation in respect of the jurisdiction of courts before the specified date.

(8) Jurisdiction with respect to a matter arising under this Act in respect of which a matrimonial cause is instituted under this Act is not conferred on a court of a Territory unless at least one of the parties to the proceedings is, at the date of the institution of the proceedings or the date of the transfer of the proceedings to the court of the Territory, ordinarily resident in the Territory.

(9) The jurisdiction conferred on or invested in a court by this section includes jurisdiction with respect to matters arising under any law of the Commonwealth in respect of which proceedings are transferred to that court in accordance with this Act.