Your Guide to Divorce in Australia

Divorce is the formal legal ending of a marriage. It is completely separate from dividing your assets (Property Settlement) or deciding who the children live with (Parenting Arrangements). Many people confuse these three processes, but in Australia they are handled independently — even though they often overlap in timing.

In Australia, we have a "No Fault" divorce system. This means the Court does not need to know why the marriage ended (e.g., infidelity or unreasonable behaviour). The only ground for divorce is that the marriage has broken down irretrievably. You do not need your spouse's permission, and neither party needs to prove that the other did something wrong.

Eligibility for Divorce in Australia

Before you can apply for a divorce, you need to meet several requirements set out in the Family Law Act 1975 (Cth). These are non-negotiable, and the Court will check each one before granting your divorce order.

The Requirements

To be eligible to apply for divorce in Australia, you must satisfy all of the following:

• 12 months of separation: You and your spouse must have been separated for at least 12 months and 1 day before filing the application. There is no way around this requirement.
• Australian connection: At least one of you must be an Australian citizen, ordinarily resident in Australia, or regard Australia as your permanent home (domicile). If you married overseas, you can still divorce in Australia provided you meet this requirement.
• Valid marriage: Your marriage must be recognised as valid under Australian law. This includes marriages performed overseas, provided they were lawful in the country where the ceremony took place. Same-sex marriages are fully recognised following the Marriage Amendment (Definition and Religious Freedoms) Act 2017.
• The marriage has broken down irretrievably: This is the sole legal ground for divorce. In practice, the 12-month separation period is the evidence the Court relies on to confirm this.

If you were married overseas and do not have your original marriage certificate, or it is in a language other than English, you will need to obtain a certified translation before filing your application.

The 12-Month Separation Rule

Before you can apply for a divorce, you must satisfy the Court that you and your spouse have been separated for at least 12 months and 1 day. This is the single most important requirement, and the date of separation will be scrutinised by the Court.

When Does Separation Start?

Separation begins when one or both parties form the intention to end the marriage and act on that intention. This does not necessarily mean moving out of the family home on a specific date. It can be the date you told your spouse the marriage was over, the date one of you moved into a separate bedroom, or the date you began living entirely independent lives.

It is critical to document your date of separation clearly. If there is a dispute about when you actually separated, the Court may require additional evidence such as statutory declarations from friends or family, bank statements showing separate finances, or lease agreements.

"Separation Under One Roof"

It is common for couples to remain living in the same home after separating due to financial pressures, childcare logistics, or the time it takes to find alternative accommodation. This is called "separation under one roof."

You can still count this time towards your 12 months, but you will need to provide extra evidence (an affidavit) proving that you were living independent lives. The Court will look at factors such as:

• Sleeping arrangements: Were you sleeping in separate rooms?
• Household duties: Were you cooking, cleaning, and shopping separately?
• Social life: Did you stop attending social events together as a couple?
• Financial separation: Did you maintain separate bank accounts and finances?
• Sexual relationship: Had the intimate relationship ended?
• Communication: Were you communicating only about practical matters (e.g., children, bills)?

You will also generally need a supporting affidavit from a third party — such as a friend, family member, or neighbour — who can confirm that they observed the separation.

What About a Brief Reconciliation?

If you and your spouse attempted reconciliation during the 12-month period, the rules allow for one period of resumed cohabitation of up to three months without resetting the separation clock. If the reconciliation lasted longer than three months, or if there was more than one attempt, the 12-month period restarts from the date of the most recent separation.

Sole vs. Joint Applications

There are two ways to apply for a divorce:

• Joint Application (Recommended): Both you and your ex-spouse agree to the divorce and sign the paperwork. This is faster, cheaper, and usually does not require a court attendance. It signals to the Court that both parties accept the marriage is over, which streamlines the process.
• Sole Application: You apply on your own and "serve" the papers to your ex-spouse. This is necessary if your ex refuses to sign, cannot be found, or is simply uncooperative. After being served, your spouse has 28 days to respond (or 42 days if they are overseas).

Which Should You Choose?

In the vast majority of cases, a Joint Application is the better option. It is less expensive because you share the filing fee, it avoids the cost and complexity of formal service, and it usually does not require anyone to attend court.

However, a Sole Application is sometimes the only realistic option. Common reasons include:

• Your ex-spouse refuses to engage or sign documents
• You have lost contact with your ex-spouse
• There is a history of family violence that makes communication unsafe
• Your ex-spouse is overseas and unresponsive

If you need to make a Sole Application and cannot locate your ex-spouse, you may need to apply for substituted service (e.g., serving the documents via email or social media) or dispensation of service (asking the Court to waive the service requirement entirely). Both require a separate application and supporting evidence.

How to Apply for Divorce Online

All divorce applications in Australia are now lodged electronically through the Commonwealth Courts Portal (www.comcourts.gov.au). Paper applications are no longer accepted.

Step-by-Step Process

• Create an account on the Commonwealth Courts Portal. For a Joint Application, both parties need their own account.
• Complete the application form. You will need to provide personal details, your marriage certificate, details of any children under 18, and evidence of your 12-month separation.
• Upload supporting documents. These include a certified copy of your marriage certificate (or a certified translation if the certificate is not in English) and any affidavits required (e.g., for separation under one roof).
• Pay the filing fee. As of 1 July 2025, the Court filing fee is $1,125. If you hold a Health Care Card, Pensioner Concession Card, or Commonwealth Seniors Health Card, the reduced fee is $375. You can also apply for a fee exemption based on financial hardship.
• Serve the documents (Sole Applications only). After filing, you must arrange for your ex-spouse to be served with the divorce papers. You cannot serve them yourself — it must be done by a third party or a professional process server.
• Attend the hearing (if required). For most Joint Applications without children under 18, no hearing is necessary. The Court processes the application "on the papers." For Sole Applications or cases involving children under 18, a brief court hearing may be scheduled.
• Receive your divorce order. If the Court is satisfied, it will make a divorce order. The divorce becomes final one month and one day after the order is made. At that point, you receive a divorce certificate and are free to remarry.

Common Mistakes That Delay Applications

• Uploading a marriage certificate that is not certified or not translated
• Providing inconsistent separation dates between the application and the affidavit
• Not filing the required affidavit for separation under one roof
• Failing to properly serve documents in a Sole Application
• Not paying the correct filing fee

Do I Need to Go to Court?

Whether you need to physically attend court depends on your circumstances:

• No court appearance required: Joint Applications with no children under 18. The Court deals with these administratively.
• Court appearance may be required: Sole Applications, or any application where there are children of the marriage under 18. The Court wants to ensure that proper arrangements are in place for the children's care, welfare, and development.

Even when a court hearing is scheduled, it is typically brief — often no more than five to ten minutes. The judge or registrar will confirm the details of the application and check that appropriate arrangements exist for any children.

Divorce and Children Under 18

If you and your spouse have children under 18, the Court pays particular attention to the arrangements in place for their care. This does not mean the Court will make parenting orders as part of your divorce — divorce and parenting are separate legal processes. However, the Court needs to be satisfied that "proper arrangements" exist before granting the divorce.

If you would like support working through your separation, your options and what comes next, we're here to help.