About Family Law in Australia
Going through a separation or divorce raises a lot of questions. Here are honest answers to the questions our clients ask most often. If you don't find what you're looking for, call us for a free consultation.
Divorce
In Australia you need to have been separated for at least 12 months before applying for divorce. Once you apply to the Federal Circuit and Family Court of Australia, it typically takes 3-4 months to be finalised.
No. Australia has no-fault divorce, meaning you don’t need your spouse’s agreement or consent. You simply need to demonstrate the marriage has broken down irretrievably — shown by 12 months separation.
No — and this surprises a lot of people. Divorce only legally ends the marriage. Property settlement, child custody and parenting arrangements are entirely separate legal matters that need to be dealt with independently.
The court filing fee for divorce is currently $1,060 (or $345 if you have a health care card). Legal fees vary depending on complexity — an uncontested divorce can be handled for $1,500-$3,000 in legal fees.
Superannuation is treated as an asset in Australian property settlements and can be split between parties. This is done through a superannuation splitting order as part of your overall property settlement.
Property Settlement
& De Facto Relationships
Australian courts consider all assets, liabilities and superannuation as the property pool. The split isn’t automatically 50/50 — courts look at each party’s financial and non-financial contributions plus future needs.
Married couples have 12 months after divorce is finalised. De facto couples have 2 years from the date of separation. Missing these deadlines means you need court permission to proceed — don’t delay.
No. Most property settlements are resolved through negotiation or mediation without going to court. Consent orders can formalise your agreement without a court hearing.
Everything — the family home, investment properties, savings, shares, superannuation, businesses, vehicles and debts. Assets in either party’s name or held jointly are all included.
Yes. De facto couples who have lived together for at least 2 years have the same property rights as married couples under the Family Law Act 1975.
Separation
There’s no formal legal process to separate in Australia — you simply need to tell your partner and start living separately. However, a written separation agreement can protect your interests.
Yes. Courts recognise separation under one roof. You’ll need evidence showing you’ve been living separate lives — separate finances, bedrooms, social lives and telling family/friends.
Note the date of separation in writing — even just a text message or email to yourself. This date matters legally for property settlement and divorce timelines.
No. But you should get legal advice early about your property rights, parenting arrangements and any urgent financial matters before making agreements.
Joint accounts, credit cards and mortgages remain joint obligations until formally changed. Open separate accounts immediately and seek financial advice about your specific situation.
Parenting Arrangements
It means both parents have equal say in major long-term decisions about the child — education, health, religion. It doesn’t automatically mean equal time with each parent.
No. Most families reach agreement through negotiation or Family Dispute Resolution (mediation). Court is a last resort — it’s costly, slow and stressful for children.
The child’s best interests are the paramount consideration. Courts look at the benefit of meaningful relationships with both parents, protection from harm, the child’s views, and each parent’s capacity to meet the child’s needs.
Yes. Parenting plans can be changed by mutual agreement at any time. Consent orders require a court application to change. Either way, changed circumstances like relocation or a parent’s new relationship can trigger a review.
There’s no magic age in Australian law. As children get older their views carry more weight, but the court always considers whether the preference reflects the child’s genuine wishes rather than a parent’s influence.
Child Support
Services Australia uses an administrative formula based on both parents’ incomes, the number of children, their ages and the amount of time each parent spends with them.
Services Australia can enforce payments through wage garnishment, intercepting tax refunds, suspending passports and taking legal action. You don’t have to chase payments yourself.
Yes. Binding Child Support Agreements allow parents to agree on amounts outside the formula — but both parties need independent legal advice before signing.
The standard formula covers basic costs. School fees, medical expenses and extracurricular activities are additional expenses that can be negotiated separately or through a binding agreement.
Generally when the child turns 18. It can continue if the child has a disability or is still in full-time secondary education.
Child Custody
“Custody” is an old term. Australian law now uses “parental responsibility” (decision-making) and “time with” (where the child lives and spends time). Both parents generally share parental responsibility.
Only in serious circumstances involving risk of harm. Unilaterally stopping contact without a court order can reflect badly on you in proceedings. Seek legal advice immediately if you have safety concerns.
A legally binding court order setting out arrangements for children — where they live, time with each parent, communication and other specifics. Breaching a parenting order is a serious matter.
By consent, orders can be finalised in weeks. Contested matters can take 12-24 months or longer through the courts. This is why negotiated outcomes are strongly encouraged.
Yes. Grandparents and other significant people in a child’s life can apply for parenting orders. The court considers the child’s best interests including maintaining important relationships.
Consent Orders
Legally binding court orders made by agreement between the parties — without going to a hearing. They cover property settlements and parenting arrangements and are approved by the Federal Circuit and Family Court of Australia.
Typically 6-12 weeks once the application is filed. The court reviews the orders to ensure they’re just and equitable before approving them.
Not legally required, but strongly recommended. Poorly drafted consent orders can be difficult to enforce or may not adequately protect your interests.
Property consent orders are very difficult to change once made — this is why getting them right is critical. Parenting consent orders can be varied if there’s been a significant change in circumstances.
Consent orders are approved by the court and easier to enforce. Binding Financial Agreements are private contracts between parties — both options have pros and cons depending on your situation.
Binding Financial Agreements (BFAs)
A private written contract between parties that deals with how property and finances will be divided — either before, during or after a relationship. Often called a prenup when made before marriage.
Yes, if properly executed. Both parties must receive independent legal advice and the agreement must comply with the Family Law Act 1975. Poorly drafted BFAs are regularly set aside by courts.
Yes. Courts can set aside a BFA if there was fraud, duress, unconscionable conduct, failure to disclose assets, or if circumstances have changed dramatically.
Typically $3,000-$10,000 depending on complexity. Both parties need separate lawyers which adds to cost — but this cost is minor compared to the protection it provides.
Yes — this is a legal requirement. Each party must receive independent legal advice from their own lawyer before signing.
Prenuptial Agreements
Yes. In Australia they’re called Binding Financial Agreements under the Family Law Act 1975. They’re legally enforceable if properly prepared and executed with independent legal advice.
Many couples find the process actually strengthens their relationship — it requires honest conversations about finances, expectations and values before marriage.
How property will be divided if you separate, protection of assets brought into the relationship, inheritance protection, business interests and superannuation.
Yes. Courts can set aside prenups that weren’t properly executed, where there was non-disclosure of assets, duress, or where enforcing it would cause hardship.
Well before the wedding — at least 3-6 months prior. Don’t leave it to the last minute as rushed agreements are more vulnerable to challenge.
Relocation
Not without the other parent’s consent or a court order permitting relocation. Moving without agreement can result in you being ordered to return and can harm your case significantly.
The child’s best interests are paramount. Courts weigh the reasons for moving, impact on the child’s relationship with the other parent, the child’s views and each parent’s ability to facilitate the other’s relationship.
You can apply to the court for permission to relocate. Courts understand that parents need to be able to pursue reasonable life opportunities — but must balance this against the child’s need for both parents.
Contested relocation matters are often urgent. Interim hearings can happen quickly. Final orders can take 12+ months. Early legal advice is essential.
International relocation requires either the other parent’s consent or a court order. Taking children overseas without consent can constitute international child abduction under the Hague Convention.
Contravention of Family Law Orders
You can file a contravention application with the Federal Circuit and Family Court of Australia. Penalties range from make-up time for the child to fines and even imprisonment for serious repeated breaches.
Failing to comply with any term of a parenting order — including not returning children on time, not facilitating phone contact, or taking children interstate without permission.
Courts accept reasonable excuses like genuine safety concerns for the child. However you must still notify the other party and court as soon as possible and document your reasons.
Document everything — keep records of missed handovers, save text messages and emails, note dates and times. Evidence is critical in contravention proceedings.
No. Self-help remedies like withholding your own time or removing the child are likely to backfire and put you in breach yourself. Always seek legal advice and use the proper court process.
Recovery Orders
A court order requiring a child to be returned to the person they should be living with under a parenting order. It can authorise police to locate and return the child.
If your child has been taken by the other parent without your consent and is not being returned despite a parenting order being in place.
Recovery orders are treated urgently by the court. An urgent hearing can be arranged within days in serious cases.
Yes. A recovery order specifically authorises police to find and return the child to you. Police can enter premises to recover the child.
This becomes an international child abduction matter under the Hague Convention. You need urgent legal advice — time is critical as the longer the child is overseas the more complex recovery becomes.
