FAQs: Divorce for Filipino migrants

Some Filipino migrants assume that they are not eligible to file a divorce in Australia because they were married in the Philippines and because divorce is still not available there. Some also believe that divorce is not accessible to those who are on a temporary visa.

This article intends to provide answers to common questions on divorce based on migrants’ different circumstances.

  1. I am currently on a Student visa here in Melbourne and my husband is still in the Philippines, can I file a divorce here in Australia?

Yes, you can file a divorce in Australia while on a Student visa even if your
husband is outside of Australia if:

  • You have been living in Australia for at least 12 months and you intend to continue to do so;
  • Your marriage has broken down and there are no prospects of you getting back together;
  • You have been separated for at least 12 months and a day;
  • You have a marriage certificate; and
  • You have been married for over 2 years.

Note that holders of other visas such as permanent residency visas or temporary visas can also be eligible to apply for a divorce in Australia if they satisfy the criteria listed above.

  1. Will my divorce in Australia be recognised in the Philippines?

No, your divorce in Australia will not be recognised in the Philippines as
there’s no divorce there.

  1. I am still married in the Philippines, but I have a new partner here in Australia, do I need to file a divorce so I can apply for a Partner visa?

If you intend to register your de facto relationship with your new partner or if you intend to get married, then you should apply for divorce. However, if you can demonstrate that you have lived together with your new partner for at least 12 months and you don’t have plans of getting married or registering your de facto relationship, then you don’t have to file a divorce and you can still be eligible to apply for a Partner visa.

  1. What’s the difference of filing a divorce in Australia and filing an annulment in the Philippines?

Australia has a no-fault divorce policy which means that you don’t have to provide evidence of your reasons on why you are filing a divorce unlike when applying for annulment in the Philippines. Divorce in Australia also costs cheaper, and you can get the result faster as compared to spending hundreds of thousands of pesos when applying for an annulment in the Philippines which takes years to get a decision on.

  1. Am I required to attend a hearing when applying for a divorce?

Most joint applications (application made by both parties) and some sole applications (application made by just one party) are not required to attend a hearing. However, attendance to a hearing is required under any of these circumstances:

  • Sole application with a child under 18 years old at the time of filing;
  • You ticked yes on the application when asked if you intend to attend the hearing;
  • There’s an objection from either party of the matter being heard if the other party won’t be able to attend;
  • The other party files a response opposing the application; and
  • If the court is seeking for further information about the application. For example, if an annulment in the Philippines is in progress at the time of filing the divorce application and the court is asking information about the annulment application.

It can be overwhelming to understand the applicable law when filing for a divorce and it can also be intimidating appearing at the court should you be required to attend a hearing. It is suggested to seek advice and/or assistance from a Family Lawyer if you are contemplating on applying for a divorce in Australia.

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