Married and Separated Within Two Years

Have you been married less than two years and want to apply for divorce?

If you find yourself in this situation, there is certain criteria that the court expects you to meet before granting you a divorce.

 

When is the two years calculated from?

The two years is calculated from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least twelve months before applying for a divorce.

What do I need to do?

If you have been married for less than 2 years and want to apply for a divorce, you must either:

  1. Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse 

          OR

2. If you have not attended counselling, seek permission of the Court to apply for a divorce.

 

Attend counselling

After the counselling session, you can ask the counsellor to complete a counselling certificate that states he/she has discussed the possibility of reconciliation with you and your spouse.

You can get a blank counselling certificate from www.familylawcourts.gov.au, or by calling your nearest family law registry on 1300 352 000. Take the certificate with you to the appointment for the counsellor to complete.

Note: You need to attach the completed certificate to the back of the Application for Divorce when you file it.

If you do not attend counselling

If you do not attend counselling with your spouse, you need to get the Court's permission to apply for a divorce. You seek this permission by filing an affidavit with your court application.

What is an affidavit? An affidavit is a written statement prepared by a party or witness. It is the main way you present evidence (facts of the case) to the Court. You must swear or affirm the affidavit before a person authorised to witness affidavits; for example, a lawyer or Justice of the Peace.

In you affidavit you will need to explain why you and you spouse did not attend counselling e.g that you cannot locate your spouse, or your spouse refuses to attend.

Be sure to explain if there are any special circumstances of your case e.g. a history of violence and it is not safe for you to attend counselling with your spouse.

Do I need to attend court?

If you have made a sole application and there is a child of the marriage under 18 years, you must attend the court hearing. In all other circumstances, provided you set out the circumstances of your separation and file the required affidavits with the Court, you do not need to attend the court hearing. If the court requires mor information, it will adjourn the case and direct you to file additional material or to attend the court hearing.

Legal advice

You should seek legal advice before applying for a divorce. You can seek legal advice from a:

  • legal aid office
  • community legal centre. or
  • private law firm

Court staff can help you with questions about court forms and the court process, but cannot give legal advice. 

For more information, including access to legislation, forms or publications mentioned in this article:

This article is an excerpt from a Fact Sheet by the Family Law Courts, and is not intended as legal advice.