Grounds for divorce

Under Australian law the sole ground to obtain a divorce order in relation to a marriage is based on the fact that the marriage has broken down irretrievably and there is no reasonable prospect that cohabitation will be resumed. This principle is known as the no-fault divorce principle and applies equally to heterosexual or same-sex marriages.

In order to make the divorce order, the court must be satisfied that the parties have lived separately and apart for a continuous period of not less than 12 months immediately prior to the date of the filing of the divorce application.

Since 2003, pursuant to a practice direction issued by the Family Court, all applications for divorce (in all States except Western Australia) are to be filed in the Federal Circuit Court notwithstanding that proceedings relating to both parties may be pending in the Family Court of Australia.

In Western Australia, all applications for divorce are filed in the Family Court of Western Australia.

It is difficult to oppose an application for divorce and the two main grounds are:

• • there has not been 12 months separation as alleged in the application; or
• • the Court does not have jurisdiction.

Provided a person has a valid marriage in another country, they can obtain an Australian divorce, as long as they can supply the Court with a certified copy of their marriage certificate.

Where a party alleges that their marriage is not valid because, eg, the other party was married to another person at the time of marriage, they can apply for a decree of nullity rather than a divorce order.

See Which court?

Domicile, citizenship and ordinary residence

Section 39(3) of the Family Law Act 1975 sets out the jurisdictional requirements to file an application for divorce. The applicant or respondent must be:

• • an Australian citizen, by either birth, descent or by grant of citizenship;
• • ordinarily domiciled in Australia; or
• • ordinarily resident in Australia and has been so resident for one year immediately preceding that date.

If the applicant was born in Australia but is currently living overseas, they can file proceedings for divorce in Australia as "an Australian citizen".

See Domicile, citizenship and ordinary residence.

Appropriate forum

Notwithstanding that either the applicant or respondent are able to meet one of the above requirements, disputes sometimes arise in relation to the appropriate jurisdiction to hear and determine divorce proceedings. More often than not, this dispute arises when the parties are living overseas or have property overseas and the granting of a divorce in Australia will affect family law proceedings in an overseas country.

A court may rule that a stay of proceedings should be granted in the Australian court only if it is a “clearly inappropriate forum”. This will be the case if continuation of the proceedings in the Australian court would be oppressive, in the sense of “seriously and unfairly, burdensome, prejudicial or damaging” or “vexatious”, in the sense of “productive of serious and unjustified trouble and harassment”: Voth v Manildra Flour Mills Pty Ltd. Known as the “clearly inappropriate forum” rule, a court may apply this rule if it becomes aware that divorce proceedings are underway in another country.

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

See Appropriate forum.