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Reasons for Divorce in Australia - The Legal Terminology You Need to Know

Getting divorced can be rough – and it’s not uncommon to feel like you’ve failed somehow. But the reality is that around 33% of Australian marriages end in divorce. Over the last decade, the median duration of time between “I do” and finalised divorce was around 12 years. Sad statistics aside, marriage is hard, and sometimes divorce is the best way forward. An individual’s reasons for divorce are personal and varied. If you’re going through it, it’s best to arm yourself with knowledge.

What are the most common reasons that relationships break down?

According to the Australian Family Lawyers National Survey, the top five reasons for divorce in 2023 are :

Domestic violence
Infidelity
Continual argumentative conflict with spouse
Poor communication
Financial reasons

While these may be the most cited reasons for divorce, relationships are complex and there isn’t always a single reason as to why they end. Sometimes people simply grow apart or discover their values and beliefs no longer align.

What are the legal definitions when it comes to applying for a divorce?

The legal terminology used in divorce and the reasons for divorce — Photo by Sora Shimazaki on Pexels

While there is a lot of legal terminology to learn in family law, these are some terms specific to applying for divorce. We talk about more complex terminology in later sections.

Affidavit: A statement written by a party or witness that gives facts as a form of evidence to the Court. It is signed before a lawyer to swear its truth.

Applicant: Someone who applies to the Court. Divorce Orders often have joint applicants with sole applicants in special circumstances. In the case of sole applicants, the other spouse becomes the respondent.

Divorce Hearing: A hearing that is scheduled and held to determine whether a Divorce Order should be granted. Not all situations require you to attend.

Divorce Order: A Court order that is the legal end of a marriage.

Filing: The submission of required documents for a divorce application. This is usually done online.

Form: A required document to be filled out and filed to the Court. See here for a list.

Learn more about the divorce process with our Divorce FAQ.

No fault divorce, irretrievable breakdown, and irreconcilable differences

No Fault divorce

The no fault divorce principle was introduced in 1976. It means that no one needs to be at fault to be able to file for divorce. You or your spouse are not required to have done anything wrong (like cheating) to get a divorce.

Irretrievable breakdown

Irretrievable breakdown is the only requirement to be able to file for divorce. The way this is proven is through separating and living apart for 12 months.

If you move back in together for more than three months, the separation period resets. If this happens for less than three months, separation will resume. Be sure to keep a record of dates. Ensure you and your ex agree on the date when your separation starts to avoid disputes later.

Irreconcilable differences

Irreconcilable differences is a legal term used in US Family Law to indicate that a relationship has completely broken down and should be dissolved.

It is not a requirement or legal term in Australian Family Law. Irretrievable breakdown is the only requirement for divorce.

What if you are still newlyweds?

If you have been married for less than two years, the process is a little different.

1. Counselling

There is an extra requirement for those with short marriages to go to counselling. This can be with a family counsellor or nominated counsellor who will help you discuss the possibility of reconciling. You still need to be separated for at least one year to be able to apply for divorce.

2. Special circumstances

It is not always safe or suitable to go through counselling. There may be a history of violence, or one partner may refuse to go.

You need to seek the Court’s permission to apply for divorce if you do not go to counselling. You will need to attach an affidavit to your application with a reason for not attending counselling and any special circumstances to your matter.

How do I do separation under one roof?

You may decide to live in the same house for a range of reasons (money and children being the most common). Separation under one roof may be necessary in some situations, but it’s easy to mess it up and cause delays with your divorce down the track.

You will need to prove that while you live together, you are living a separate and independent life. Some factors that you need to have evidence for can include

sleeping separately
reducing shared activities
individually performing household tasks
separation of finances
friends and family are aware
relevant government departments are aware

These are just some of the factors and the Court decides matters case-by-case. Be sure to contact your lawyer before applying for divorce if you have separated under one roof.

Thinking about divorce? Get started with a Free Discovery Call

The purpose of this article is to provide general information. It does not constitute legal advice. Please get in touch to discuss your specific circumstances.