Sarah Wilkins
26 August 2020
The divorce component of family law in Western Australia applies to couples who are (or were) married or during a de facto relationship. De facto under Australian law is a couple who have lived together in a relationship for at least two years, unless you have had children together or there have been substantial contributions to joint property, in which case, it may be shorter than two years.
Divorce is the next typical step after separation. Separation is once you and your partner stop cohabitation as a couple. This is usually the start of the process which ends the relationship from a legal perspective. For married couples, a divorce marks the legal end of your marriage to each other.
A divorce doesn’t sort out children or property in any way. It is literally just an order to say that your relationship status has changed, and it recognises that the wedding relationship has ended.
You and your former partner will have to make separate decisions about parenting and dividing property.
Western Australia has ‘no-fault’ divorce laws. The Family Court of Western Australia doesn’t consider why the wedding ended. The sole ground for divorce is that the wedding has irretrievably weakened. You are doing not need to prove that the opposite person was the cause for the connection ending.
To obtain a divorce in Western Australia, you must be ready to prove that you have been separated from your former partner for a minimum of 12 months before you applied for a divorce, and that there is no reasonable chance that you will ever get back together into a relationship again.
Under family law in Australia, a marriage of less than two years is named a “short marriage”. Before you can divorce from a short marriage, you are typically required to attend court mandated marriage counselling together, as a way to discuss if there’s any possible chance of reconciling your relationship. You will then be issued an Attendance at Counselling Certificate, which the Family Court of WA requires, before it can grant you a divorce in Western Australia.
However, you can get an exclusion from counselling under special circumstances, such as a history of violence or abuse in your relationship, and it’s not safe for you to attend counselling together with your spouse, or that you have been unable to find your spouse, and you are prepared to detail all the methods in which you’ve tried to locate them.
It is not necessary for both of you to agree to getting divorced. Applications for divorce in Western Australia are often submitted by just one of the people involved, however you can also do a joint application together.
If you apply on your own, you will need to serve a copy of the papers on your former partner, after it has been filed with the court. The court won’t make a divorce order unless it’s satisfied that your former partner knows there is an application in the court.
Once you file your divorce application, a divorce hearing date will be set around 1-3 months after filing. If you and your former partner don’t have children under 18 years old (including step children or adopted), or it is a joint application, then it’s not required for you to attend the court hearing.
However, if there are children involved, and the application was made as a solo application, you both will need to attend the Family Court of WA.
This is in order for the court to see that there are arrangements agreed in place for support, education, and housing of the children between the two parents.
If you are served with a sole application for divorce, and you object to this, you can only object to the divorce if you have not been separated for a minimum of 12 months, or that you know that the court doesn’t have jurisdiction to grant a divorce.
If you notice any mistakes on the divorce application, such as incorrect facts or spelling errors and the like, then you can also file a response to invite those things to be corrected, without necessarily objecting to the application.
If you file a response to mention that you simply object to the divorce, you want to attend the court hearing; alternatively the court can decide the application in your absence.
Remember, that a divorce does not affect any property settlement. You will need to undertake completely separate court proceedings or negotiations to sort your assets and liabilities out.
Once your divorce is final, you and your ex partner are welcome to enter another marriage.
