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Understanding Divorce Procedures in Australia

Are you considering getting a divorce and looking for top family lawyers in Australia? If so, there are some things you need to know. 

Divorce is a serious decision that should not be taken lightly. This is because divorce proceedings can have a significant impact on your life, both emotionally and financially. Not only will there be legal fees to pay, but you may also need to divide your assets between you and your ex-partner. This can be a complicated process, so it is important to seek professional advice if you are considering divorce. 

Federal Family Law Act 1975

In Australia, the divorce rate is currently sitting at around 42%. This means that nearly one in two marriages ends in divorce, although the numbers are higher in countries like the USA or UK. 

Whilst this number may seem high, it’s been on the decline over the past few decades. In 2020, the number of divorces was 49,510, which is slightly higher than the previous year. The divorce rate peaked in the 1970s when the ‘No-Fault Divorce’ was introduced under the Federal Family Law Act 1975.

The concept of no-fault divorce means that a Court does not apportion blame to either party for the breakdown of the marriage. Instead, the Court looks at whether there has been an ‘irretrievable breakdown’ of the marriage. This is generally assessed by looking at whether the parties have been living separately and apart for a period of 12 months or more.

If you have been living separately and apart for 12 months or more, you can file for divorce by yourself. If you have not been living separately and apart for 12 months or more, you will need to file for divorce jointly with your spouse.  

Definition of Divorce in Australia

Australian divorce law indicates divorce as the legal dissolution of a marriage. To be eligible for divorce, a couple must have been married for at least 12 months and must satisfy the court that they have irretrievably broken down their relationship. Once granted, a divorce becomes absolute one month and one day after the decree nisi is issued.

Why Divorce and Financial Settlement Are Two Different Things

A divorce is a legal process of ending a marriage, whilst a financial settlement is a process of dividing up the couple’s finances and property. A divorce can be granted without a financial settlement, but a financial settlement cannot be granted without a divorce.

 What Are the Rules for Divorce in Australia?

If you want to get divorced according to Australian divorce law, you must first complete a divorce application. This can be done online through the Australian Government website. Once you have completed the application, you will need to file it with the court and pay the required fee. 

You should be aware that the process of getting divorced can be complex and time-consuming. So, it’s important to have some understanding of family law whilst following all of the steps involved. 

  1. File a Petition for Divorce—File a petition with the court. This document will state that you want a divorce and why you want one. 
  1. Serve Your Spouse with the Divorce Papers—Once you’ve filed your petition, you’ll need to serve your spouse with the documents. 
  1. Attend a Hearing—There will be a hearing where both parties can present their case to the judge. 
  1. Finalise the Divorce— The judge will decide whether or not to grant your divorce. If your divorce is granted, you will be given a divorce certificate. You can then use this certificate to remarry if you wish.

If you have any questions about the process, you should consult with top family lawyers in Australia.

The Grounds for Divorce

Irretrievable Breakdown of the Marriage

Irretrievable breakdown of a marriage occurs when one spouse believes that the relationship has no chance of reconciliation. In some cases, couples may agree to remain married but live apart (known as legal separation). Infidelity and financial problems are factors.

Professional help and counselling can provide you with support and guidance as you navigate this difficult time. Or talk to a lawyer expert in family law rules to learn more about your legal options.


Whilst adultery is grounds for divorce, it is important to note that not all affairs will lead to divorce. Adultery is committed when one spouse has an affair with another person. This can lead to feelings of betrayal, resentment and anger. If you are considering divorce due to adultery, consider talking to a lawyer to learn more about your legal options. 

Unreasonable Behaviour

Unreasonable behaviour is defined as any action that goes against the basic standards of human decency. This can include but is not limited to, physical violence, sexual assault and emotional abuse. Things like making someone feel uncomfortable or unsafe in their own home, workplace or school is also an example. 

Note that not all unreasonable behaviours are illegal. Just because something is not illegal does not mean it is okay. It is important to speak up and get help from experts in family law rules when you are treated badly.


Desertion as a ground for divorce typically occurs when one spouse abandons the other spouse without their consent. Desertion may also occur if one spouse fails to provide financial support to the other spouse. 

To obtain a divorce based on desertion, the deserted spouse must generally prove in the court of family law that the other spouse intentionally intended to abandon him or her. Additionally, the deserted spouse must usually demonstrate that they have been negatively affected by the abandonment, such as experiencing financial hardship or emotional distress.

How Madison Marcus Can Help You

Staying in a toxic marriage can be detrimental to your emotional, mental and physical health. If you choose to proceed with a divorce, our team of excellent family law lawyers is here to help you get through this complicated process. The judiciary system can be intimidating, but we, at Madison Marcus, will be with you every step of the way.

For all enquiries or to book a free 15-minute consultation, contact us today.


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