Australia has a "no-fault" divorce system. The court does not ask who was to blame for the end of the marriage. It only needs to be satisfied that the marriage has broken down irretrievably, which is shown by at least 12 months of separation with no reasonable likelihood of getting back together.
1. Check that you are eligible
To apply for a divorce in Australia, at least one of you must be an Australian citizen, live in Australia and regard it as your permanent home, or ordinarily live in Australia and have done so for at least 12 months before applying. You must also have been separated for at least 12 months.
If you have been married for less than two years, you generally need to attend counselling first and file a certificate, or ask the court for permission to proceed without one.
2. Separated under one roof?
Many couples keep living in the same house after separating, often for financial reasons or for the children. That still counts as separation, but you will need to file additional affidavits explaining how your relationship changed, such as sleeping in separate rooms, separate finances and no longer presenting as a couple. Evidence from a friend or family member is often required.
3. Apply through the Commonwealth Courts Portal
Divorce applications are filed online with the Federal Circuit and Family Court of Australia. You can apply jointly with your former partner or on your own (a sole application). A filing fee applies, and reduced fees may be available if you are experiencing financial hardship.
4. Serve your former partner (sole applications)
If you apply on your own, your former partner must be formally served with the application. You cannot hand it to them yourself; it is usually served by post or by another adult. Service must happen at least 28 days before the hearing if they are in Australia, or 42 days if they are overseas.
5. Arrangements for children
If there are children of the marriage under 18, the court must be satisfied that proper arrangements have been made for their care before it grants the divorce. The court will not grant a divorce until it is satisfied of this, but it does not make parenting orders as part of the divorce.
6. The hearing and when the divorce takes effect
Many hearings are short and held electronically. If you applied jointly, or if you applied alone and there are no children under 18, you often do not need to attend. Once the divorce order is made, it takes effect one month and one day later.
Time limits you must not miss
Once your divorce takes effect, you have 12 months to apply for property settlement or spousal maintenance orders. After that you need the court's permission, which is not guaranteed. Many people finalise their property settlement before or at the same time as the divorce for this reason.
Divorce also affects your will. Depending on your state, it may revoke gifts to your former spouse, so it is a good time to update your will and superannuation nominations.
How we can help
A divorce application can be straightforward, but separation under one roof, service problems and overseas marriages often cause delays. We can prepare and file your application, deal with service, and make sure your property and parenting matters are protected at the same time.
