Gay divorce in the age of marriage equality: is it easy?


We are an LGBTI law firm but we service all communities. The purpose of this post is to let the LGBTI community know that not only can gays and lesbians now get married, but we can also get divorced.

Because of international marriages and civil unions, as well as life documents such as Wills and financial agreements, we advise anyone contemplating a marriage or a divorce to speak to a qualified family lawyer. Below, we set out the process for everyone – gays, lesbians and heterosexuals.

Gay men on wall

Getting divorced: five steps

Since the commencement of the Family Law Act 1976, Australia has operated as a ‘no-fault’ jurisdiction in relation to divorce. That means that irrespective of the reason a marriage might have broken down, a divorce order can still be made by the Federal Circuit Court if the marriage is irretrievable.

In Australia, an Application for Divorce can be made by one party or by joint application. The application is made to the Federal Circuit Court  and is usually heard by a registrar (a senior administrative officer of the court). If the divorce is contested, the matter will be referred to a judge for determination according to law.

For the Court to make a divorce order, the registrar must be satisfied of the following five steps:

  1. If the Application for Divorce is a sole application, that personal service of the application has been effected. The best way to effect personal service is through a mercantile agent (also known as a process-server). Service is usually performed at the respondent’s home or workplace.
  2. One or both parties are living permanently in Australia.
  3. That there was a legal marriage prior to separation. This is evidenced by annexing the Marriage Certificate to the application.
  4. That the marriage has irretrievably broken down. This is evidenced by a continuous period of separation of 12 months immediately prior to the date of filing the application.
  5. That for any children of the marriage under the age of 18, proper arrangements have been made for them. For instance a parenting plan exists or there are consent orders. These are annexed to the application.

If the registrar is satisfied of all five elements, the divorce order will be made.*

*An important aspect to note is that if there are children under the age of 18, your lawyer will need to attend the divorce hearing on your behalf and make submissions to the court in relation to the divorce application.

Get in touch

Get in touch with our family law team, and they will be able to provide advice and assist you through the process. Ring us on 9519 3088.