Overview — Grounds for divorce

Unlike many countries, “fault” need not be proved by the applicant to be entitled to a divorce in Australia. That is, Australia has “no fault” divorce.”

Provided an applicant can show that the marriage has broken down irretrievably and that the parties have been separated for a period of 12 months with no reasonable likelihood of resuming cohabitation, a divorce order will be granted. Where there are children under 18 years the court will also need to be satisfied that proper arrangements have been made for their welfare.

The parties may be separated but living under the one roof; in those cases, evidence of the fact that the parties were actually separated must be filed by way of affidavit evidence, so the court may make a finding that they are satisfied the parties were actually separated. The applicant must provide evidence of how their domestic arrangements have changed since separation and an independent witness must also verify what they have observed.

The court does not have the power to waive the requirement of the parties being separated for 12 months, nor does the court have the power to shorten the time period, even if the parties consent.

See Separation for 12 months prior to filing.

If the parties reconcile during the 12 month separation period, this may not necessarily mean that the required 12 month period commences again. The court will be required to look at the length of time of the reconciliation and deal with the separation period in one of two ways:

• • If the parties reconcile for a period less than 3 months, the time of the actual reconciliation will be added on to the end of the required 12 month period, increasing the time period but not requiring the time period to commence again.
• • If the parties’ period of reconciliation was for a period greater than 3 months, the 12 month separation period recommences and the parties will be required to wait a further 12 month period prior to being able to file for divorce.

See Effect of resumption of cohabitation.

The court also has the power to require the parties to attend counselling prior to granting a divorce order. The court may order counselling either:

• • where the parties have been married for less than a two year period: see Applying for a divorce within two years of marriage; or
• • where the parties have children under the age of 18 years of age and the court is not satisfied that the arrangements for the children are appropriate: see Divorce and the care and welfare of children.