A divorce is a court order that dissolves a marriage.

What is the divorce process in Western Australia?

Divorce only applies to a married couple. Divorce occurs when all legal requirements to end a marriage are completed. It starts with the married couple separating for 12 months and then filing a divorce application with the Family Court of Western Australia. The Family Court then hears the divorce application, and the marriage is legally ended when the Family Court makes a Divorce Order.

If you are in a de facto relationship, there is no requirement to undergo a divorce in court. In a de facto relationship, the relationship ends when you separate and inform your partner of the separation.

A divorce application can be filed as a joint or sole divorce application. If you have children under the age of 18 years, a court hearing may be required at the Family Court of Western Australia so the court is satisfied with the parenting and custody arrangements of the children. Otherwise, if a court hearing is unnecessary, the divorce application is heard without the parties.

What are the eligibility requirements to apply for a divorce?

To be eligible to apply for a divorce: –

• You or your spouse must have a connection to Australia in that you or your spouse: –
• must be an Australian citizen or
• consider Australia to be your home and intend to live in Australia indefinitely, or
• have resided in Australia for at least 12 months before the date of the filing of the divorce application.

Suppose you are an Australian citizen currently living overseas. In that case, you can apply for a divorce in Australia, notwithstanding that you do not live in Australia or have lived less than 12 months in Australia before the date of the divorce application.

• The marriage must have “broken down irretrievably”. To show this, you must satisfy the Family Court that you and your spouse have lived separately for 12 months.

What are the requirements for a legal separation?

Living separately for a continuous period of 12 months does not require registration or signing of legal documents. Separation occurs when the two spouses no longer share life as a couple. This may be initiated by one or both spouses. If both spouses agree to end the relationship, separation occurs when they commence to live in separate bedrooms or when one spouse leaves the marital home. Suppose separation is initiated by one of the spouses. In that case, separation occurs when you inform your spouse of the separation and live separate lives, such as moving to a separate bedroom or leaving the marital home.

• There is an exception to the requirement that you must have lived separately for a “continuous” period of 12 months. The law allows spouses to attempt reconciliation and live together once for up to 3 months without restarting the 12-month separation period. For example, if you are separated for five months, and you and your spouse then attempt to reconcile and commence living together for three months and then separate again, the earlier separation period of 5 months will be considered when computing the 12-month separation period. However, if your reconciliation attempt exceeds three months, the earlier separation period of 5 months will no longer count, and you will have to restart the 12-month separation period.

Can I apply for a divorce, although my spouse and I continued to live in the same house following the separation?

• Many couples live in the same home for some time after separation for financial reasons, to care for the children, or due to a lack of alternative accommodation. If you live in the same home after separation, you can still apply for a divorce. Still, it would be best if you satisfied the court that you and your spouse lead separate lives, such as you and your spouse no longer sharing bank accounts, having family meals together, sleeping together, and no longer attending social functions as a couple.

What happens if my spouse and I have been married for less than two years? Can I still apply for a divorce?

• You must have been married for at least two years to apply for a divorce. The two years are calculated from the marriage date to the divorce application filing date. If you have been married for less than two years, you cannot apply for a divorce unless: –
• You and your spouse attend a counselling session with a family counsellor to discuss the possibility of reconciliation and file a certificate confirming this with the court;

or

• If you do not wish to attend counselling, you must obtain the court’s permission to proceed with the divorce application. To do this, you will need to explain to the court why you and your spouse did not attend counselling or of any particular circumstances of your case, such as domestic violence that makes it difficult or unsafe for you to attend counselling with your spouse or which makes it imperative that you are permitted to apply for a divorce without undergoing counselling.

Can I apply for divorce alone, or must my spouse and I use for a divorce together?

You can apply for a divorce on your own. This is called a sole application. If you make a sole application, that divorce application must be served on your spouse, and you must prove to the court that service has been effected. If you are making a sole application and your children are under 18, you must attend court for the divorce hearing. Alternatively, you and your spouse can apply for a divorce together. This is called a joint application. If you are making a joint application, there is no requirement to serve the divorce application on your spouse, and both parties may not be required to attend court for the divorce hearing.

How long will the court grant a divorce after I have filed the divorce application?

Once the divorce application is filed in the Family Court of Western Australia, a divorce hearing is scheduled for about three months. If you are the sole applicant, you must serve the divorce papers on your spouse and file an affidavit with the court confirming that service has been effected on your spouse. If the divorce papers are not served or carried out too close to the divorce hearing, that divorce hearing will have to be postponed to a later date.

When the divorce hearing occurs and the court grants a divorce, the Divorce Certificate will usually be issued the next business day, 31 days after the hearing date.

Can I file a divorce application in the Family Court of Western Australia if I live overseas?

Yes, in some circumstances, if you live overseas and meet the criteria, you can file a divorce application in the Family Court of Western Australia.

Contact us

For all enquiries, please get in touch with the family lawyers at Robertson Hayles Lawyers at (08) 9325 1700  or by email at enquiries@robertsonhayles.com or via our contact form, and we will be happy to assist you.