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When can I apply for divorce?

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In Australia there is one ground for divorce; irretrievable break down of marriage. This is evidenced by one year’s separation. In the ordinary course of things, you can apply for divorce after one year’s separation. However, the Court will not make a divorce order if it considers it likely that you and your spouse will re-commence living together as husband and wife. If there are children under 18 years of age, the Court must be satisfied that proper arrangements have been put in place for the care of them.
It is possible to be considered separated although you are living under the same roof as your spouse. The fact that either of you may have provided some household services to each other does not necessarily mean that you cannot meet the criteria for being separated. If you were separated under the one roof during the 12 months prior to filing for divorce, you will need to provide evidence to the Court about your separation. In some circumstances you will require an independent person to also provide evidence by way of affidavit.
Either party can file for divorce or the parties may make a joint application. Once a Court has made a divorce order it is final one month after that order was made, except in special circumstances. You are unable to marry until the divorce is final. If you are planning to re-marry but are not yet divorced, it is important to ensure that you allow yourself enough time for filing of the application and for the divorce order to be made. The Court is unlikely to deal with your application and make an order for some months after it is filed. It may also be difficult to predict matters which may delay the making of the order, such as being unable to serve your spouse with the divorce application.

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