By Peter Fairfield, excerpt from ‘Easy Guide to Australian Law’


The ending of a marriage leads to significant legal issues: apart from the termination of the marriage relationship itself, there is the welfare of any children of the marriage (the most important issue), and the division of property and financial resources.

In law, divorce is called a dissolution of marriage. In Australia, all applications for dissolution of marriage must be made in the Family Court of Australia, the Federal Magistrates Court or, if the couple was married in Western Australia, the Family Court of Western Australia. In the Northern Territory, couples seeking a divorce apply to the Northern Territory Supreme Court.

Either the husband or the wife can apply, by lodging the application form, plus the marriage certificate, with the court.

The only grounds for divorce now is ‘irretrievable breakdown of the marriage’, where there is no way to save the marriage. The parties must also have been separated for a period of 12 months before a dissolution order will be made. An application for dissolution of a marriage that is less than two years old must be accompanied by a certificate from a counsellor stating that the couple have considered reconciliation.

The application can be prepared without a lawyer, and if there are no children of the marriage under 18 years of age the husband and wife do not have to be present in court.

Decree nisi and Decree absolute

Usually, the court will make an order declaring that a divorce will be granted (a decree nisi). An order dissolving the marriage (the decree absolute) is made one month and one day after the decree nisi.

The court can refuse to make an order if it is not satisfied that proper arrangements for any minor children (children under 18 years of age) of the marriage have been made.

Overseas marriages

People married overseas can apply for a dissolution of marriage if one or both of them is an Australian citizen or resident or regards Australia as their permanent home. The court will need a copy of the marriage certificate. If the marriage certificate is not in English, the person applying will need to get:

* an English translation of the marriage certificate and
* an affidavit from the translator, which must:
o state his or her qualifications to translate
o be attached to a copy of the marriage certificate together with the translation and
o state that the translation is accurate and that the attached copy
of the marriage certificate is a true copy of the translated marriage certificate.

Opposing a divorce

Provided a couple have been separated for more than 12 months, there are few grounds upon which a spouse can oppose an application for divorce. However, a spouse who wishes to respond to an application for divorce can file a Response to Divorce or, if the response relates to jurisdiction (such as neither spouse having any connection to Australia) a Response to Jurisdiction (Divorce).

Do-it-yourself divorce kits

The Federal Magistrates Court has a divorce kit which includes an application form and a guide to completing it.

The court charges a fee when an Application for Dissolution of Marriage is filed. In the Federal Magistrates Court, there is a filing fee.

Note: Processes and fees relating to legal procedures change quickly. While the information presented here will be regularly updated, you can also check for further updates and details by visiting the below links.