Separated, or thinking about separation?
Applying for a divorce in Australia
If you would like to apply for a divorce and your separation is relatively straightforward you may be able to apply using a divorce kit. You can commence this process after you have been separated for a period of no less than 12 months.
You can make an application for divorce individually or jointly. Your application is a separate process to any property settlements or parenting arrangements. Once you have filled out the application and had it witnessed by either a lawyer or justice of the peace, you can file the application (and pay the filing fee) at the court registry.
Once your application for divorce is filed, you will be given a future court date. In some circumstances, you can be excused from attending the divorce hearing.
The court no longer posts hard copies of divorce orders. Your divorce order will be made available to you through the Commonwealth Courts Portal after the order has become final. The divorce order has an electronic seal and signature and is an original order. This divorce order is the only official and original record the court issues and is evidence that a divorce order has been made.
You must finalise any property settlement within 12 months of the date of your divorce.
Before applying for a divorce (with or without a divorce kit), you should seek legal advice in relation to your circumstances
Read more about the divorce process.
Divorce & Separation FAQs
How do I apply for a legal divorce in Australia?
An Application for Divorce can be made either by one of you or by both parties jointly. If both parties apply, then the process is quicker and often cheaper as no attendance at Court is required.
If only one person applies and there are children of the marriage under the age of 18 then the Applicant or their representative needs to attend Court. There are also specific rules around service.
Depending on the situation the Divorce may take between 6 weeks and 6 months. You need a copy of your marriage certificate to apply.
Do there need to be grounds for divorce?
In Australia, a divorce is determined without the regard to any fault of either party. This means that the Court does not need to know the details leading up to separation. The Court’s concern is the fact separation has occurred, not the reasons for it. The only thing you’ll need to prove is that you have been separated for 12 months, you have remained separated and you intend to stay separated.
What is the difference between separation and divorce?
You do not need to sign anything, or do anything “official” to be separated. If you are married, you can apply for a divorce once you have been separated for 12 months.
It is possible to be separated and still be living in the same house. It is also possible to be living in different houses and not be separated.
You are separated for the purposes of Family Law when:
- One party to the marriage has formed a view that the relationship is over;
- They have informed the other party of that view;
- They have acted on their decision by doing such things as:
- Moving out or moving into another bedroom;
- Telling friends and family of the separation;
- Not going out together socially;
- Living separate lives.
How long after separation can I file for a divorce?
In order to get a divorce, the Court needs to be satisfied that the parties have been separated for more than 12 months immediately before filing an application for divorce, which you can apply by yourself or jointly with your spouse.
What will happen to my children in a divorce?
The Family Law Act specifies what the court must consider when making arrangements for children in a family law dispute. The court must at all times focus on what is in the best interests of the children. One of the issues the court will consider is who has and who should have parental responsibility for the children. Unless changed by a court order both parents usually share parental responsibility for their children.