Legal comment by Mishi Yarovy of Hinterland Lawyers

September 2004

What?
Divorce is essentially the legal conclusion of a marriage.  In Australia, there is only one ground for obtaining a divorce; the irretrievable breakdown of the marriage as evidenced by twelve months separation. 

Why?
It is advisable to obtain a divorce rather than remain separated for an indefinite period due to the legal consequences that flow from being married.  The most obvious example is that you cannot remarry without first obtaining a divorce.  Another significant consideration is the effect that your marital status has on your Will.  For example, the legislation governing Wills and Estates in Queensland operates to automatically cancel any appointments or gifts to a spouse upon the granting of a divorce.  Conversely, if you are merely separated, your spouse may be able to make a claim against your estate if you have not provided for them in your Will.  

When?
An application for divorce must be made after the twelve month separation has elapsed.  Extra conditions apply if the marriage is less than 2 years old.

How?
An application for divorce must be filed in the Federal Magistrates Court in the approved form and can be made jointly or solely.  The Court will then appoint a day for the hearing of the application.
You need to attend the hearing unless there are no children under the age of 18 of the marriage.  You can engage a solicitor to appear on your behalf. 
If the Court is satisfied that all the requirements necessary for a divorce are met, a provisional order called a "decree nisi" is granted.  There is then a waiting period of one month and one day, after which, provided that the Court does not receive notice of any grounds upon which it should not grant a divorce, the court will grant a "decree absolute" which is the final order. 

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