1. Applying for a Divorce
Divorce is the legal process that formally ends a marriage. Under Australian family law, there’s just one ground for divorce: the marriage has broken down irretrievably. Because Australia has a no-fault system, the Court doesn’t need either spouse to prove the other caused things to end.
For a lot of people, that comes as a relief. Your application doesn’t need to become an argument about who was right or wrong. The only question is whether the legal requirements have been met.
When Can I Apply for Divorce?
Before filing, you and your spouse need to have been separated for the required period. Current Court guidance allows an application once you’ve been separated for 12 months and one day. At least one spouse also needs to genuinely regard the marriage as over, with no reasonable prospect of reconciling.
You may be able to apply in Australia if either you or your spouse meets the relevant citizenship, residence or domicile requirements. If you’re not sure whether you qualify, don’t try to piece it together from half a dozen websites. Talk to us and we’ll look at your situation properly.
What Documents Do I Need?
You’ll generally need a marriage certificate as part of the application. If it’s not in English, you’ll also need a translation, and the Court requires that translation to come with an affidavit from the translator.
Other documents may be needed depending on your circumstances, particularly if you’ve:
• lived separately under the same roof
• been married overseas
• changed your name
• had trouble obtaining your marriage certificate
• been unable to locate your spouse
• or have other circumstances requiring extra evidence
We work out what’s needed before the application goes in, rather than waiting for a problem to show up later.
How Does the Divorce Process Work?
Every matter’s a little different, but a typical divorce involves preparing the application, filing it through the Commonwealth Courts Portal, handling service, responding to any requests for further evidence, and having the application considered by the Court.
Not everyone needs to attend a divorce hearing in person. Whether you do depends on your specific circumstances, and Court procedure actually changed in June 2025, removing the old automatic attendance requirement for sole applicants who simply had children under 18. We can explain whether you’re likely to need to attend and what to expect if you do.
When Is the Divorce Final?
A divorce isn’t necessarily final the day it’s granted. In most cases, the Divorce Order becomes final one month and one day after it’s granted, and you shouldn’t make plans to remarry until it’s actually final.
2. Sole and Joint Divorce Applications
A divorce doesn’t need both spouses on board to go ahead. There are two main paths: sole or joint.
Sole Divorce Applications
A sole application is made by one spouse. You’re the applicant, your spouse is the respondent, and while they don’t need to sign anything, the documents generally need to be formally served on them.
One thing worth knowing: you can’t personally serve divorce documents on your spouse yourself. Depending on the circumstances, service is usually arranged through another adult or a professional process server. Current Court rules also set timeframes for service before the hearing, ordinarily at least 28 days if your spouse is in Australia, and 42 days if they’re overseas.
We manage that process for you and make sure the evidence of service is handled properly.
Joint Divorce Applications
If you and your former spouse can work together, a joint application often makes the admin side simpler. Both of you become joint applicants, both sign, and because you’re applying together, formal service between you isn’t required.
A joint application doesn’t mean you need to agree on every other family law issue. You may still have separate matters to work through around property, parenting, child support or other financial questions.
Can My Spouse Stop Me From Getting Divorced?
Your spouse doesn’t have to agree to a sole application, but they can file a Response to Divorce if there’s a legal reason to oppose it, for example a genuine dispute about whether the legal requirements have actually been met.
It’s the Court, not either spouse, that ultimately decides whether the requirements for divorce are satisfied. So if your former spouse is threatening to “refuse” the divorce, talk to us before assuming that’s the end of it.
What If I Cannot Find My Spouse?
Losing contact with a former spouse doesn’t automatically stop a divorce from proceeding. A sole applicant usually still needs to serve the documents, but if reasonable attempts to locate your spouse haven’t worked, it may be possible to ask the Court for substituted service, or to dispense with service altogether, depending on the circumstances.
These applications need care. We can advise you on what evidence is needed to show the steps you’ve taken to find the other party, and what options are open to you next.
3. Divorce When Your Circumstances Are More Complicated
Not every marriage fits neatly into a standard divorce form. Sometimes the challenge isn’t the divorce itself, it’s proving the facts around it.
Separated but Living Under One Roof
Housing costs, kids, mortgages, all the practical stuff, mean separated couples don’t always move into different homes right away. Australian law recognises that people can be separated while still living at the same address.
If you’ve lived under one roof for any part of the 12 months before filing, you’ll generally need additional affidavit evidence showing there was a genuine change in the relationship. That might cover things like changed sleeping arrangements, household responsibilities, finances, social activities, and how you presented the relationship to family, friends or government agencies.
Rather than guessing what the Court expects, we can help you put that evidence together properly.
Married Overseas
Being married overseas doesn’t mean you have to get divorced overseas. You may still be able to apply in Australia if you meet the relevant eligibility requirements and the marriage was valid under the law of the country where it took place.
Marriage certificates that aren’t in English need to be translated according to Court requirements, and if your spouse now lives overseas, service can get more complicated too, so it’s worth getting advice before filing.
My Marriage Lasted Less Than Two Years, Do I Need Counselling First?
There’s a lot of outdated information about this floating around online. From 10 June 2025, people married less than two years no longer need to provide the old counselling certificate, or an affidavit explaining why counselling didn’t happen, simply because the marriage was short. The ordinary requirements, including the separation period, still apply.
If you’ve read conflicting advice online, talk to us and we’ll explain the current position.
What If My Former Spouse Lives Overseas?
A spouse living overseas doesn’t necessarily stop an Australian divorce, provided the Court has jurisdiction. But sole applications with an overseas respondent do carry extra service requirements. The Court currently requires service at least 42 days before the hearing if your spouse is overseas, and international service rules may apply on top of that. Getting this right early helps avoid unnecessary delays.
4. Divorce, Children, Property and Your Financial Future
One of the most important things to understand about divorce is what a Divorce Order doesn’t do.
It ends the marriage. It doesn’t automatically divide your property, make parenting orders, decide child support, or resolve spousal maintenance. Those can exist alongside the divorce, but legally they’re separate matters entirely.
Divorce When You Have Children
If there are children of the marriage under 18, the application needs information about their current arrangements, things like where they live, schooling, health, financial support and time with each parent. The Court has to be satisfied about these arrangements before the divorce takes effect.
That doesn’t mean the divorce itself decides your parenting arrangements. If you and your former spouse disagree about the kids, you may need separate advice about parenting plans, consent orders, parenting orders or family dispute resolution. We can help you understand the difference and work out what fits your family.
Divorce and Property Settlement
Property settlement is a separate matter from divorce. You don’t need to wait until you’re divorced to address it, and in a lot of cases, there are good reasons not to.
Once a divorce becomes final, though, an important time limit kicks in. Generally, you need to start proceedings for property or financial orders within 12 months of the divorce taking effect. Apply outside that window and you’ll usually need the Court’s permission.
That’s why we encourage clients not to think of the divorce application in isolation. If your finances aren’t finalised, tell us, and we’ll help you work out whether anything else needs attention before that clock starts running.
What About Spousal Maintenance?
Spousal maintenance is also separate from the divorce itself. Depending on your circumstances, one former spouse may be able to seek financial support from the other, but different legal requirements apply, so getting a Divorce Order doesn’t automatically determine whether maintenance is payable. If this is relevant to your situation, we can review your position and talk through your options.
Can I Remarry Straight Away?
No. You need to wait until the Divorce Order is final before remarrying, which in most cases is one month and one day after it’s granted. If you’re planning a wedding, give yourself plenty of time, and don’t assume your divorce will be granted at the first scheduled hearing, especially if there are issues with the application, service or supporting evidence.
Should I Update My Will After Divorce?
Divorce can have consequences well beyond the family law process itself. The Federal Circuit and Family Court specifically recommends getting advice on other flow-on effects of divorce, including your Will. Big life changes are a good moment to check whether your estate planning documents still reflect what you actually want.
