Separating from a partner is one of the hardest things a person goes through. Alongside the emotional upheaval come urgent practical questions: where the children will live, what happens to the house, and how to formally end the marriage. We help you understand your options and take the right steps in the right order.

Separation and divorce are different things

Separation happens when one or both of you decide the relationship is over and act on that decision. There is no form to file and no court involved. Divorce is the legal end of a marriage, and it is granted by the Federal Circuit and Family Court of Australia.

Importantly, a divorce order does not deal with parenting arrangements or the division of property. Those issues are dealt with separately, and you do not need to be divorced to resolve them.

When can you apply for divorce?

Australia has a “no-fault” divorce system. The only ground is that the marriage has broken down irretrievably, which is shown by the two of you having lived separately and apart for at least 12 months, with no reasonable likelihood of getting back together.

• Separated under one roof: you can still apply if you lived in the same home during some or all of the 12 months, but you will need to file additional evidence explaining how your relationship changed.
• Married less than two years: you will generally need to show you have attended counselling to consider reconciliation, or obtain the court’s permission to apply.
• Married overseas: you can usually divorce in Australia if either of you is an Australian citizen, lives in Australia and regards it as home, or has lived here for at least 12 months.

The divorce process

1. Application: an application can be made by one spouse (a sole application) or both spouses together (a joint application), and is filed online.
2. Service: for a sole application, the other spouse must be formally served with the documents within set timeframes before the hearing.
3. Children: if there are children of the marriage under 18, the court must be satisfied that proper arrangements have been made for them before granting the divorce.
4. Hearing: many divorces are dealt with without either party attending, although attendance is required in some circumstances, including some sole applications involving children under 18.
5. Divorce order: the divorce takes effect one month and one day after the order is made.

Time limits you need to know about

Once a divorce takes effect, you have 12 months to start proceedings for property settlement or spousal maintenance. After that, you need the court’s permission, which is not guaranteed. This is one of the most common traps people fall into, so it is worth getting advice about property before or as soon as your divorce is granted.

Things to think about after separating

• Arrangements for the children and how you will communicate with your former partner about them.
• Who will stay in the family home and how the mortgage and bills will be paid in the meantime.
• Joint bank accounts, credit cards and loans.
• Your will, superannuation death benefit nominations and any powers of attorney – separation does not automatically change these.
• Keeping copies of important financial documents.

How we can help

We can prepare and file your divorce application, arrange service, and represent you at a hearing if needed. More importantly, we can advise you on parenting and property arrangements so that everything is resolved properly and within time.

Common questions

Do I need my spouse’s agreement to divorce?

No. If you meet the requirements, you can apply on your own. Your spouse can respond, but generally cannot stop a divorce if the 12-month separation requirement is met.

Does it matter who left or why the marriage ended?

No. The court does not consider who was at fault when deciding whether to grant a divorce.

Do I have to go to court?

Often not, but it depends on the type of application and whether there are children under 18. We will tell you whether attendance is required in your case.

Related services

• Parenting Arrangements
• Property Settlement
• Spousal Maintenance
• Domestic & Family Violence
• Consent Orders
• Financial Agreements (BFAs)

This page is general information only and is not legal advice. Every family is different – please contact us for advice about your situation.