Updated: 17 hours ago
Divorce can be a challenging and emotional time for all involved, but understanding the process can make it easier to navigate. In Australia, divorce is the formal and legal end to a marriage, acknowledging that the relationship has irreparably broken down.
Navigating A Separation or Preparing to Apply for Divorce?
While a divorce formally ends a marriage, resolving property settlements and parenting arrangements requires experienced legal guidance. Speak with the dedicated lawyer at RHC Solicitors to protect your rights and assets.
In This Article:
What Is Divorce?
Simply put, divorce is the legal process that formally ends a marriage.
If you and your spouse have reached a point where reconciliation is no longer possible, you can apply for divorce after 12 months of separation. Every divorce is different; some are amicable and straightforward, others are difficult and emotionally exhausting.
'No-Fault' Divorce In Australia
Australia operates under a 'no-fault' divorce system, which means the Court does not consider the reason for the breakdown of the marriage.
This principle, established by the Family Law Act 1975, states that the only requirement for divorce is that the marriage has irretrievably broken down. In other words, the Court only needs to be satisfied that there is no reasonable likelihood that you and your spouse will reconcile.
If spouses have been separated for at least 12 months, they can apply for a divorce without providing evidence from either party about why the marriage has ended.
The Role Of The Federal Circuit And Family Court Of Australia (FCFCOA)
The Federal Circuit and Family Court of Australia (FCFCOA) handles divorce applications under Part VI of the Family Law Act 1975.
Divorce proceedings do not resolve issues related to finances, property distribution, or arrangements for children (we'll discuss this below). A divorce simply acknowledges that your marriage has legally ended. Separate legal processes will generally address financial settlements and child custody arrangements as required.
This is why we recommend engaging a reputable family lawyer as early as possible to ensure the documentation is completed correctly and your rights and obligations are met and protected at every stage.
Who Can Apply For Divorce?
You can apply for a divorce in Australia if you or your spouse:
Are an Australian citizen; or
Live in Australia and consider it your permanent home; or
Ordinarily live in Australia and have done so for at least 12 months before applying.
Note that same-sex married couples can apply for divorce if the marriage is recognised in Australia, and you meet the requirements for divorce under the Family Law Act 1975.
If you were married overseas, and your foreign marriage is recognised in Australia, you will need to provide the Court with a copy of your marriage certificate. If your original marriage certificate is not in English, you must upload an English translation, along with an affidavit from a certified translator.
Married For Less Than 2 Years?
You cannot apply for divorce if you have been married for less than two years unless you attend counselling to discuss reconciliation or under special circumstances. The two years is calculated from the date the marriage began to the date you file for divorce.
This is a legal requirement and shows that you have at least considered and attempted to reconcile with your spouse.
If you don't attend counselling with your spouse, you will need the Court’s permission to apply for a divorce. You can seek this permission by providing an affidavit alongside your divorce application.
Circumstances where an affidavit may be required include:
Your spouse refuses to attend counselling
Your spouse does not respond to requests to attend counselling
There is a history of abuse in the marriage, and it is not safe for you to attend counselling
Obtaining permission from the Court to apply for a divorce when you have been married for less than two years is sometimes challenging, which is why it's important to speak with a family lawyer. Our family law team can help you prepare an affidavit and offer further advice to protect your rights as you move to the next stages.
Requirements For A Divorce Application
To be eligible to apply for divorce, you must demonstrate to the Court that:
You and your spouse have been separated for at least 12 months; and
There is no reasonable chance that you and your spouse will get back together.
Separation can occur even if you and your spouse are still living under the same roof. In such cases, you’ll need to provide evidence of your separation while cohabiting.
When submitting a divorce application, you will need to provide a copy of your marriage certificate, proof of jurisdiction (e.g. a citizenship certificate, passport, or visa), and a counselling certificate (if the marriage is less than two years, as noted above).
Sole Or Joint Applications
You can apply for divorce on your own (a 'sole application') or with your spouse (a 'joint application'). You generally complete a divorce application online via the Federal Circuit and Family Court of Australia website.
A filing fee applies when you submit a divorce application.
If you make a sole application, you are the applicant and must serve the application on the other party (your spouse, referred to as the respondent). You can serve divorce documents by post or in person.
Note the strict time limits. If your spouse is:
in Australia, you must serve the documents at least 28 days before the court hearing.
overseas, you must serve the documents at least 42 days before the court hearing.
In joint applications, you do not need to serve documents, and you are both referred to as joint applicants.
Do I Need To Go To Court?
Attending the divorce hearing is only required if:
you filed a sole application
there is a child of the marriage aged under 18 years at the time of filing
you have indicated that you wish to attend court in the application
the respondent (your spouse) files a response opposing the application
It is also recommended that you attend a hearing if your circumstances have changed since making the application, such as a substantial change to your financial situation, living arrangements or otherwise.
If you want to attend a hearing, even if you are not required to, you should indicate this in your application.
All divorce hearings are conducted electronically. Once a divorce application has been submitted, the hearing details will be available on:
Commonwealth Courts Portal (see ‘Court Events and Orders’ section); and
The court list from 4 pm (AEDT) the day prior to the hearing
These details will include the date and time of your divorce hearing, the name of the registrar who will hear and determine your application, and further details of how to attend.
Make sure you have all documents available, including a copy of your application and service documents.
If the Court grants the divorce, it will be finalised one month and one day later, unless the Court orders a shorter period.
What About Children & Finance?
Granting a divorce does not resolve matters related to finances, property, spousal maintenance, or parenting arrangements for your children.
To address these issues, you can:
engage in dispute resolution to resolve any points of disagreement
reach an agreement with your spouse and file it with the Court as consent orders
create a parenting plan or financial agreement
apply for Court orders if you and your spouse cannot reach an agreement (note that time limits may apply)
Children
Where minor children are included, a Court will only grant a divorce if it is satisfied that appropriate arrangements have been made for the child's care. In your application, you will need to provide information about any children (including biological, step-children, adopted or dependents).
Include detailed information about how the children spend time with each parent, their communication patterns, and their education, health, and financial support.
If the parties cannot agree on the child's care, the court may need to issue further orders. If so, we recommend engaging an experienced family lawyer to protect your rights and work with you toward a realistic outcome.
Financial
Be aware that a divorce order sets time limits for addressing financial matters. You must start most financial and property proceedings within 12 months of the divorce order, unless you and the other party have agreed.
As expected, any financial or property settlement should be in writing and prepared by a lawyer to ensure the terms are drafted correctly and in your best interests. The cost will ultimately vary depending on the extent of your assets and whether further negotiations are needed to reach a final settlement.
When Is A Divorce Final?
Once the Court grants a divorce, the order becomes effective one month and one day after the ruling. After this period, the Court will issue a Certificate of Divorce, officially ending the marriage.
We recommend that you don't make plans to remarry until your divorce order is finalised, as the divorce process can take time.
You shouldn’t assume it will be finalised at the first court hearing, particularly if you have minor children or other unique factors that add further complexity. This is especially important if a party hasn't engaged a lawyer, your application may be incomplete, or the Court has further questions it needs to answer before deciding.
If you intend to remarry before a divorce is finalised, the Marriage Act 1961 has additional requirements that must be met before you can marry.
Get Legal Advice
If you're considering divorce or need help with any part of the process, get proper legal advice as soon as possible. Without it, you may place yourself and your assets at significant risk.
Contact our experienced family law team today to protect your rights and help you navigate your divorce smoothly and efficiently. For over 40 years, we have helped thousands of couples navigate a relationship breakdown, and we understand that every relationship is unique.
That's why we offer new clients a free 30-minute consultation with our family lawyers so they can understand your situation and how we may be able to assist you. Click the button below to make an appointment now.
Originally Published: 6 December 2024
Last Updated: 30 September 2026
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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