Divorce

Divorce is the formal legal ending of a marriage. It is separate and distinct from property settlement and parenting arrangements after the breakdown of a marriage.

You do not have to get a divorce when you separate unless you want to remarry, but staying married may affect your legal obligations. It is important to get legal advice if you are unsure of what you wish to do.

To be able to get divorced you need to show that your marriage has ‘irretrievably broken down’. This is demonstrated by being separated for 12 months or more, and there being no likelihood of the relationship resuming. The separation can be initiated by one person, or both.

Australian law does not look at whose fault it is that the marriage broke down when considering a divorce application.

Can I get divorced?

To apply for a divorce, you must have been separated for at least 12 months, and you or your spouse must:

  • be an Australian citizen, or
  • live in Australia and regard Australia as your permanent home, or
  • ordinarily live in Australia and have done so for at least 12 months before the divorce application.

If you married overseas, you can apply for a divorce in Australia as long as you meet the criteria above.

If you have been married for less than two years, you will need to attend counselling with a family counsellor and file a counselling certificate or get permission from the court to apply for a divorce without the certificate.

A divorce application can be applied for by one person alone, or jointly.

Separation

Separation generally means living apart from each other. It can be unilaterally initiated by either spouse, or mutually decided.

To prove that your marriage has ‘irretrievably broken down,’ in order to obtain a divorce, you must have been separated for at least 12 months.

It is possible to be ‘separated under one roof’ if certain criteria are met. If you are separated under the one roof, it is important to get legal advice.

How to apply

You will need to apply to the Federal Circuit Court for a divorce. If you are in Western Australia, you will need to apply to the Family Court of Western Australia. The family law court websites have information, fact sheets and application kits to guide you through this process.

You can apply together (a ‘joint application’), or one person may apply (a ‘sole application). Whether you will need to attend court will depend on whether the application is joint or sole, and whether you have children under the age of 18.

Many people now apply for a divorce online. Information on how to apply can be found at the following websites:

Federal Circuit Court of Australia

Family Court of Western Australia

There are fees for applying for a divorce, which you will be responsible for. Information about current fees, including information about fee reductions or exemptions, can be found at the family law courts’ websites:

Federal Circuit Court of Australia fees

Family Court of Western Australia fees

Children and property

A divorce order will not include parenting or property arrangements.

If you have children under the age of 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. ­Children and family law has information on making arrangements for the care of your children after a relationship breakdown.

You can apply for property orders before your divorce becomes final. If you haven’t obtained property orders once your divorce becomes final, and want to, you must apply to court for property orders within 12 months. Money and property has information on dividing your money and property after a relationship breakdown.

Timeframes

Like many other family law matters, it can be difficult to provide a precise timeframe for the granting of a divorce.

In most cases, the divorce order takes effect one month and one day after the order is made by the court. However, the court may not make an order at the first hearing, and may require more information from you.

Anh and Linh are married and do not have any children. They have decided to divorce. Linh finds that the Federal Circuit Court website has lots of information about the process. After being separated for 12 months Anh and Linh decide that they want to make a joint application for their divorce. They are able to do this online. Because they have made a joint application, and have no children, they do not need to attend court.

Related links

Federal Circuit Court – How Do I Apply for a Divorce?

Federal Circuit Court – How do I Register for the Commonwealth Courts Portal and eFile an Application for divorce?

Family Law National Enquiry Centre

Commonwealth Courts Portal

Next steps

Note and record key dates e.g. marriage, children’s births and separation date.

Find your marriage certificate if you have one.

Check the Federal Circuit Court website about divorce applications.

Register with the Commonwealth Courts Portal.

Electronically file (eFile) an application for divorce.