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Divorce

Clear advice to help you formally end your marriage.

Separating from a spouse is a significant life change. While parenting and financial matters can often be the most complex aspects of separation, many clients also need to formally finalise their marriage through divorce.

  • We assist clients to:

    • determine eligibility under the Family Law Act;

    • prepare and file applications correctly;

    • manage separation under one roof evidence;

    • ensure compliance with Court rules and procedural requirements; and

    • finalise the process efficiently

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What is divorce?

Divorce is the legal process of formally ending a marriage under the Family Law Act 1975 (Cth).

Importantly, divorce is separate from:

  • parenting arrangements; and

  • property and financial settlements

You do not need to finalise parenting or property matters before applying for divorce.

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Grounds for divorce

Australian divorce law is based on a no‑fault system. The Court does not consider who caused the breakdown of the relationship.

Under section 48 of the Family Law Act, the only ground for divorce is that the marriage has broken down irretrievably. This is demonstrated by a period of separation of at least 12 months and 1 day. The Court must also be satisfied that there is no reasonable likelihood of reconciliation.

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What constitutes “separation”?

Separation occurs when one or both parties:

  • decide the relationship has ended; and

  • communicate that intention

Separation does not always require living apart.

Separation under one roof

Under section 49 of the Family Law Act, parties may be considered separated even if they continue living in the same home. This is known as “separation under one roof”.

In these cases, the Court requires evidence that the marital relationship has ended and the parties are no longer living as a couple. This is usually established by:

  • affidavit evidence from the parties; and

  • independent supporting evidence (e.g. from a third party).

The Court will consider factors such as:

  • separate sleeping arrangements

  • division of finances

  • reduced shared activities

  • changes to household roles

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Applying for divorce

A divorce application may be filed:

  • by one party (sole application); or

  • jointly (joint application).

Under the Family Law Act, a party must establish at least one of the following:

  • Australian citizenship;

  • domicile in Australia; or

  • ordinary residence in Australia for at least 12 months before filing.

Divorce proceedings are commenced in the Federal Circuit and Family Court of Australia (Division 2).

The application must include:

  • a copy of the marriage certificate;

  • details of separation; and

  • information about any children

Sole applications — service requirements

Where a divorce is filed by one party only (a sole application), the applicant is required to serve the application on the other party.

Service is a critical step and must be completed in accordance with the Court Rules. Service must generally be by personal service (where the documents must be handed directly to the other party). The applicant cannot personally serve the documents themselves. Instead, service is usually carried out by a process server; or another adult (for example, a friend or professional service provider).

After service is completed, the applicant must file evidence of service, including an Affidavit of Service. The Court must be satisfied that the respondent has been properly served before granting the divorce.

If the respondent cannot be located or is avoiding service, an application can be made to the Court for substituted service (serving the documents another way) or dispensation of service. This requires evidence showing reasonable attempts have been made to locate and serve the other party.

Filing Fee

A filing fee is payable when lodging a divorce application. The current filing fee can be located on the Federal Circuit and Family Court of Australia Website here.

Divorce and Children

Before granting a divorce, the Court must be satisfied that proper arrangements have been made for any children under 18.

This requirement arises from section 55A of the Family Law Act. The Court does not determine parenting orders at this stage, but must be satisfied that the children’s care, welfare and development have been addressed.

Divorce Hearing

A hearing is usually only required where:

  • there is a sole application and children under 18; or

  • there are issues regarding service or separation

Joint applications are usually determined without attendance.

At the hearing, the Court considers whether:

  • the 12‑month separation requirement (s 48) is met;

  • jurisdictional requirements are satisfied; and

  • appropriate arrangements exist for children.

If satisfied, the Court will grant the divorce.

When does the divorce become final?

A divorce order becomes final one month and one day after it is made.

Until that date the parties remain legally married and cannot remarry.

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Divorce and Property Settlement Time Limits

Divorce has important consequences for financial matters.

Under the Family Law Act property or spousal maintenance proceedings must be commenced within 12 months of the divorce becoming final.

If this time limit is missed:

  • leave of the Court is required; and

  • permission is not guaranteed

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