The no fault principle for divorces was introduced in Australia in 1975. This means that there is no requirement that it be determined who is at fault or caused the breakdown of the relationship.
The only requirements to enable a person to file an application for divorce in Australia is:
- At least one of the parties was born in Australia, or is an Australian citizen, or has lived in Australia for the last 12 months and intend to continue to live in Australia; and
- The parties have been separated for at least 12 months and there is no likelihood of them reconciling.
To have been separated for 12 months, the parties are not necessarily required to be living separately and apart. It is possible that the parties have been “separated and living under the same roof”. When making an application for divorce, to prove that the parties were in fact separated and living under the same roof, evidence would need to be provided by one of the parties by way of affidavit confirming the separation details. The court may also require a third party (such as a family friend) to provide evidence as to when the parties separated.
If the parties have been married for less than two years when applying for a divorce, evidence will need to be provided, by way of a certificate, confirming that the parties attended counselling with a family counsellor. This counselling can be arranged by contacting the Family Relationship Advice Line on 1800 050 321. If there is no possibility of the parties attending counselling, one party may file affidavit material seeking the permission of the court to file the application for divorce.
If you have any questions we offer a free initial consultation, please contact us on 07 5619 5933 to arrange.