Unlike many countries, “fault” need not be proved by the applicant to be entitled to a divorce in Australia. That is, Australia has “no fault” divorce. A divorce, in Australia, is granted by the issue of a “divorce order”.

To be entitled to a divorce order, an applicant must show that the marriage has broken down irretrievably. This is proved by establishing that the parties have been separated for a period of 12 months or more prior to the signing of the Application for Divorce.

The parties may be separated but living under the one roof; in those cases, evidence of the fact that the parties were actually separated must be filed by way of Affidavit evidence, so the court may make a finding that they are satisfied the parties were actually separated.

The court does not have the power to waive the requirement of the parties being separated for 12 months, nor does the court have the power to shorten the time period, even, if the parties consent.

See Separation for 12 months prior to filing.

If, during the 12 month separation period, the parties reconcile, this may not necessarily mean that the required 12 month period commences again. The court will be required to look at the length of time of the reconciliation and deal with the separation period in one of two ways:

• If the parties reconcile for a period less than 3 months, the time of the actual reconciliation will be added on to the end of the required 12 month period, increasing the time period but not requiring the time period to commence again.

• If the parties’ period of reconciliation was for a period greater than 3 months, the 12 month time period commences again and the parties will be required to wait a further 12 month period prior to being able to file for divorce.

See Effect of resumption of cohabitation.

The court also has the power to require the parties to attend counselling prior to granting a divorce order. The court may order counselling either:

• where the parties have been married for less than a two year period: see Applying for a divorce within two years of marriage; or

• where the parties have children under the age of 18 years of age and the court is not satisfied that the arrangements for the children are appropriate: see Divorce and the care and welfare of children.