Since 1975, a husband or wife can file for divorce only if the parties have lived separate lives for a minimum period of 12 months immediately prior to the date of the filing of the application. There is, however, provision under the Family Law Act 1975 to live as husband and wife for a period of up to 3 months after the 12-month separation period has commenced. This provision allows the parties to attempt reconciliation during the period of separation. If the husband and wife separate for a second time, it is possible to use the time before and after living together as husband and wife (reconciliation period) to calculate the 12-month separation period. For example, the parties live separate lives for the first 6 months of the 12-month separation period. They attempt reconciliation, but after 2 months they realize the marriage cannot be saved. The parties separate a second time. The parties can use the 6 month period prior to the attempted reconciliation and they will then need to be separated for an additional 6 months to satisfy the 12 month minimum separation period before applying for a divorce order. If the parties live as husband and wife for longer than 3 months during the separation period and separate a second time, then the 12 month period must start from the beginning.
It is possible for the parties to live under the same roof during all or part of the 12-month period of separation and still be considered separated. However, supporting affidavits may be required to satisfy a court the divorce order ought to be granted.
Once the parties have lived separate lives for a total of 12 months, the court will grant a provisional divorce, which becomes absolute one month and one day later. Notably, the parties cannot remarry until the divorce decree becomes final.
If there are children aged under 18, a court will only grant a divorce if satisfied that proper arrangements have been made for their continued care.
Applications for property settlement must be filed within 12 months of the divorce becoming final or within two years of a de facto relationship ending.
An Application for Divorce is made to the Federal Magistrates Court. It should be noted that a Divorce Order does not deal with property or parenting arrangements as these issues are dealt with under separate applications.