Divorce in Australia – the basics!

Are you thinking about applying for a divorce and want to know the process? This guide provides a brief summary of what to expect as you navigate these next steps.

Who can apply for a divorce?

In Australia a married person may apply for divorce if either spouse:

Is an Australian citizen;
Considers Australia to be their home or intend to live in Australia indefinitely, or
Has lived in Australia for 12 months immediately before filing for divorce.

A divorce application can be made where a married couple have separated and consider there to be no reasonable likelihood of reconciliation.

When can I apply for a divorce?

In order to satisfy the Court that your marriage has broken down irretrievably, you must have been separated for a continuous period of 12 months and one day immediately prior to filing the Application for Divorce.

If you and your spouse resumed cohabitation as a married couple for a period of up to 3 months following your initial separation, you can still apply for a divorce, with the initial separation period counting towards the required 12 months. However, if you and your spouse resumed cohabitation as a married couple for more than 3 months after separation, the 12 month separation period must restart from the second separation date.

What do I need to prove to be granted a divorce?

A copy of the marriage certificate must be filed with the Application for Divorce. If the marriage certificate is not available, an affidavit will need to be filed explaining why it cannot be found.

Australian law only recognises one ground for divorce: that is that the marriage has “irretrievably broken down.” This is established where:

The spouses have been separated and living separately for a continuous period of at least 12 months;
There is an intention by one or both spouses to end the marriage;
The spouse or spouses have acted as though the relationship has ended; and
Where only one spouse considers the relationship to be at an end, that person has communicated this intention to the other.

You do not need to physically live apart to prove that you consider your marriage to be at an end. However, the Court must be satisfied that you have separated. If you are separated but are living under the same roof, you will be required to provide additional information to the Court. Separation under one roof is not necessarily easy to prove and may require evidence from at least one corroborating witness contained in a sworn affidavit.

What does a divorce application involve?

To begin the process, an Application for Divorce must be filed with the Federal Circuit Court. The application can be made jointly or solely and a filing fee must be paid to the Court at the time of the filing of the documents. Elringtons Lawyers can prepare the application and lodge the application on your behalf.

Upon filing of the application, a hearing date will be set. If the application is made by one spouse only, it must then be served on the other party. You will need to prove that you have served your former spouse and file an affidavit to prove this to the Court. The application must be served on the other party within 28 days* of the final hearing of the application

There are time limitations to serve the other party, and you must ensure that they are served within these timeframes prior to the final hearing of the application. You must be careful to serve the other party within these timeframes otherwise the Court may not be able to hear the application at the final hearing. Serving the other party can be complicated and requires various documents to support that all the legal requirements have been complied with. This is something that Elringtons Lawyers can assist with if required.

Your application will come before the Court for a divorce hearing. This is when the Court will consider the application and the supporting documents. If the Court is satisfied, then they will grant the divorce order.

The divorce order will automatically take effect one month and one day after the order is granted.

Do I need to attend the final hearing?

If you have made a joint application and/or there are no children of the marriage under the age of 18, you are not required to attend the divorce hearing.

If you have made a sole application and there are children of the marriage under the age of 18, then you must attend Court. The divorce hearing will be before a Registrar of the Court, and you may be asked some questions about your application.

All applications filed after 10 June 2025, or not finalised before 10 June 2025, will no longer require attendance at Court even if it is a sole application or there are children to the marriage under the age of 18 years. For more information please read: “Family Law changes from June 2025“

Do I need to attend counselling?

We are often asked if parties need to attend marriage counselling. This may need to occur before a divorce order will be granted.

You will need to attend counselling if you have been married for less than two years. If you do not attended counselling, you must seek permission from the Court in order to apply for a divorce.

This will no longer be the case from 10 June 2025 due to recent amendments in the Family Law Act.

What about our children and property?

A divorce order will not affect your property interests or parenting rights and responsibilities.

Property settlement applications must be made within 12 months of a divorce order taking effect. There are narrow circumstances in which you can obtain ‘leave’ from the Court to file out of time, but we strongly recommend you do not leave this to chance. You should consider attending to property orders as soon as you can, if you have not already done so, to ensure that you protect your existing assets from future claim or otherwise seek to have matrimonial assets divided.

Elringtons Lawyers are able to assist with any property settlements and attend to formalising any parenting arrangements.

elringtons Lawyers are now offering a fixed fee ‘Simple Divorce’ service priced at $1,250 plus GST plus disbursements. Please see “Fixed Fee Simple Divorce”

* If the other party is outside of Australia, then the application must be served on them 42 days clear of the final hearing of the application.