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Divorce

Divorce is the official ending of a marriage.

The only legal requirement for getting a divorce is the ‘irretrievable breakdown’ of the marriage—proven by the husband and wife being separated for 12 months with no likelihood of getting back together.

When applying for a divorce, your partner doesn’t have to agree, and the law doesn’t decide who is at ‘fault’ for the marriage breakdown.

When the divorce becomes final you are free to remarry. Get legal advice before applying for a divorce.

Getting a divorce

You can't remarry without a divorce. Staying married may affect your rights and responsibilities when dealing with financial matters, wills and estates.

To apply for a divorce at the Federal Circuit Court, you or your ex-partner must:

  • be an Australian citizen or
  • live in Australia and consider it your permanent home or
  • normally live in Australia and have lived here for at least 12 months before applying for a divorce and
  • have been separated for 12 months.

You can still apply for a divorce if you were married overseas, or if you don’t know where your partner is, as long as you live in Australia. Get legal help if you're unsure about whether your marriage is legal.

Find out how to apply for a divorce.

Arrangements involving children

The court will need to make sure proper arrangements have been made involving children before allowing a divorce to proceed.

The court will want to know:

  • where they will live
  • how they will be financially supported
  • about their health and education and
  • how they'll continue to maintain a relationship with both parents and other important people in their lives.

Getting back together for a short time

You can get back together for up to 3 months without restarting the 12-month separation period.

For example, if you're separated for 4 months, get back together for almost 3 months and then separate again for 8 months, you'll be considered to be separated for a total of 12 months. But, if you were back together for 4 months, only the most recent 8 months would count as the separation period.

Separation under the one roof

You’re considered separated when you stop living together as a couple.

After separating, one person may move out of the home, or you may be still living at home together but having separate lives—this is called ‘separation under the one roof.’

You may have to prove these living arrangements to agencies such as Centrelink. When deciding if you're 'separated under the one roof', they'll consider whether:

  • you sleep together
  • you have sex or sexual activity
  • you share meals and domestic duties (in a different way to when you were married)
  • you share money and bank accounts
  • your family and friends think of you as separated.

No single factor is conclusive. Get legal help if this applies to you and you want a divorce.

Find out more

Divorce and short marriages

If you've been married for less than 2 years, you can get divorced only if you and your partner agree to counselling, or under special circumstances. If your partner refuses counselling, you can still get divorced. Get legal advice if this applies to you.

Applying for a divorce

Related resources:
Applying for a divorce online through the Federal Circuit Court. (Note: There is a fee for applying for divorce, but in some situations you can pay a reduced fee).

Application for divorce kit—if you're unable to apply for a divorce online, this kit gives you the steps for applying for and getting a divorce, and the application for divorce form. Before you make an application make sure you've read the detailed instructions and completed the checklist in the kit.  

Divorce service kit (do it yourself kit)—this gives a step-by-step guide to serving your divorce application by post or hand, and information about how to complete the divorce service forms.

You can apply for a joint application for a divorce (ie together) or on your own (sole application) through the Federal Circuit Court.

If making a sole application, you must ‘serve’ the other person with the application—this means giving the other person the divorce paperwork so they know about the court proceedings. You must complete certain forms proving the other person has been ‘served’. You can't serve your former partner personally, but you can by mail.  

Applying for a divorce online

You can now apply for a divorce online through the Federal Circuit Court. To apply online you'll need to register for access to the Commonwealth Courts Portal.

If you need to file documents to support your divorce they can be eFiled on the Commonwealth Courts Portal.

For more information visit the Federal Circuit Court's website.

Fees and costs

You'll have to pay a court filing fee when applying for a divorce. You can apply to the court to have this reduced if you hold a government concession card or can prove you’re experiencing financial hardship.

Going to court

If you're making a joint or sole application for divorce, and there aren't any children under 18 that were part of the family before separation, then you don't have to go to court.

If you're making a sole application and there were children under 18 that were part of the family before separation, you must go to court unless there are special circumstances.

What happens at court?

The court order for divorce is granted in 2 steps.

Step 1:

If you meet all the requirements and the court is satisfied that proper arrangements have been made for any children from the relationship then a court order will be made. This is a short-term order, and isn't a full divorce.

Step 2:

The divorce order usually becomes final 1 month and 1 day after it's made, unless there's a good reason why the court shouldn't grant the divorce in that time. The date when the divorce order becomes final is the actual divorce date.

The court can order a shorter waiting period between the 2 steps in exceptional cases.

A copy of the divorce order will be mailed to you. You should keep it in a safe place as this is your proof of divorce.

Timeframes

You should allow several months from the time you file for divorce to the actual date of divorce. It may take longer if there are problems with your application.

Getting remarried

You can only remarry once your divorce order becomes final. When planning to remarry be careful not to set your wedding date too close to the date when your divorce order is expected to be finalised. If there's a delay, you won't be able to remarry until any issues are resolved and the divorce is granted. It's an offence to marry another person if you are already married.

Disputing a divorce order

You may not want to get divorced because you think the marriage isn't over or for religious reasons, but this is not sufficient ‘grounds’ (reasons) for opposing a divorce application.

Under the law, the only ground is ‘irretrievable breakdown of the marriage’. If your spouse wants a divorce and you've been separated for a year or more, the court will grant the divorce. You don't have to agree to the divorce or sign anything, but the divorce order will still be made.

You can suggest relationship counselling, but your spouse doesn't have to agree. A Family Relationship Centre or the Family Relationship Advice Line may be able to help.

If you're unsure about whether your marriage is legal you can apply for a nullity (annulment) instead of a divorce, declaring the marriage legally invalid. Get legal advice before applying.

You can only oppose a divorce order if:

  • you haven't been separated for 12 months (as alleged in the application) or
  • there's no court jurisdiction.

If you don’t want a divorce to be granted, you must file paperwork with the court and appear at the divorce hearing to explain why you want the application dismissed. Get legal advice.

If you want the divorce granted, but disagree with the facts in the Application for Divorce (eg the birth dates or details about the children are incorrect) you'll need to file paperwork with the court and attend the divorce hearing to explain. Get legal advice.

Time limits for dividing your property

There are time limits to applying for a property settlement under the Family Law Act. You must apply within 1 year from the date your divorce order has taken effect.  

Changing or making your Will

Separation and divorce from your ex-partner doesn't have an effect on your Will. If you've not updated your Will, your ex-partner can inherit any property you left to them.  

If you don't have a Will and unexpectedly die before you're divorced, your ex-partner can inherit your property (subject to the rights of any children). Get legal advice.

Find more information about wills and deceased estates.

Do I need legal advice?

You may need legal advice if you:

  • want a divorce and have been living separately 'under the one roof' for 12 months
  • need help to make arrangements about children and property after separation.
  • need to make or change your will

Get legal advice

We may give legal advice about divorce applications.

The following organisations may be able to give legal advice.

Community legal centres give legal advice on a range of topics. Contact them to find out if they can help with your matter.

Queensland Law Society can refer you to a specialist private lawyer for advice or representation.

Who else can help?

These organisations may be able to help. They don’t give legal advice.

Family Relationship Advice Line gives information about the family law system in Australia.

Family Relationship Centres give information, referrals, dispute resolution and advice on parenting after separation.

Family Law Courts deal with family law cases. Court forms and information on family court processes are available online.

Related links and information
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