Citizenship, residency and jurisdiction: does the Court have power to divorce us?

You don't need to be an Australian citizen to get divorced in Australia. The Court can hear your application if either you or your spouse is (a) an Australian citizen, (b) domiciled in Australia — living here and regarding it as your permanent home, or (c) ordinarily resident in Australia and has been for the 12 months before applying. Only one of you needs to meet one test.

The three tests

  • Citizen: by birth, descent or grant.
  • Domiciled: your permanent home is Australia — permanent residents usually qualify; even some long-term temporary residents can, depending on intention.
  • Ordinarily resident for 12 months: living here as your normal home for the last year, even on a temporary visa.

What the law actually says

Section 39(3) of the Family Law Act 1975 is the whole test: proceedings for a divorce order may be instituted if, at the date of filing, either party is an Australian citizen, is domiciled in Australia, or is ordinarily resident in Australia and has been so resident for one year immediately preceding that date. That is it. The section prescribes no method of proof, and neither the Family Law Practice Direction on divorce nor the Federal Circuit and Family Court Rules require any particular document.

What we check

In the application you state which test applies and we may attach evidence (passport, citizenship certificate, visa). If your circumstances are unusual — recently arrived, living between countries, both on temporary visas — a lawyer confirms the position before you pay.

When the Court asks for proof

Registries do sometimes ask, particularly where the marriage took place overseas, and the Court's own guidance page asks applicants in that situation for a passport, citizenship certificate or proof of permanent residency — or a VEVO check if you are relying on the 12-month residence limb. It isn't a rule, but a request costs you your place in the filing queue, so we ask for it during intake instead. Married overseas →

If neither of you qualifies

You may be able to divorce in the country where one of you lives or is a citizen, or wait until the 12-month residence is reached. We'll tell you plainly at the eligibility stage.

or call 1800 976 214

Two minutes · no obligation · a lawyer confirms everything before anything is filed

Frequently asked questions