Luckily, one thing you don’t have to worry about is the legal process of divorce, which is much more straightforward than most people realise. As long as you find a reputable family lawyer who will help navigate you through the complicated legal landscape and ensure that your rights are heard and protected during the divorce.
At Meredith Lawyers, we understand that going through the divorce process can be an emotional and stressful time, which is why we are committed to making the process as simple and stress-free as possible and to ensuring the best possible outcome for you.
In this guide, we lay out the steps to divorce in Australia in an easy-to-understand format.
What Does a Divorce in Australia Include?
In Australia, a divorce is the legal end of a marriage. Simple. It does not involve the division of property and assets or the custody arrangement of children. Those matters are resolved in separate legal proceedings, each with its own guidelines and time limits.
The 12 Month Separation Rule
The most important requirement during the divorce process in Australia is the 12-month separation period.
You and your partner need to have been separated for at least 12 months before you can apply for a divorce, as the court needs evidence that your marriage has broken down.
In some cases (due to financial or other reasons), spouses may choose to be separated while living in the same house (separated under one roof). These couples will need to provide evidence from third parties to show that they were living separately. Your divorce lawyer will be able to help you provide sufficient evidence.
Steps to Divorce in Australia: A Guide
Step 1: Ensure You Are Eligible for Divorce
Before filing for a divorce in Australia, you need to check that you tick all of the following requirements:
| Requirements | Details |
| Separation period | Spouses need to be separated for at least 12 months |
| Citizenship or residency | At least one spouse needs to be an Australian citizen, currently live in Australia or consider Australia as their permanent home |
| Marriage validity | The marriage needs to be legally recognised in Australia |
| Sharing children who are under 18 | If you share children under 18, the court needs to approve custody and parenting arrangements |
Step 2: Joint or Sole Divorce Application
If you and your spouse are on good terms and in agreement with most things, you can file a joint divorce application. If there is some conflict between both parties, a sole application can be filed by one spouse, who will need to serve the other spouse with the divorce application.
A joint application is less complex and can be resolved faster.
| Joint Application | Sole Application | |
| Who files | Both spouses | One spouse |
| Court attendance | Often not required | Often required |
| Serving documents | Not needed | You need to serve divorce papers to your spouse |
| Cost | Same filling fee for both parties | Same filing fee for both parties + additional service costs |
| Speed | A faster process | Depends on the service and the response |
Step 3: Collect Necessary Documents
Organisation is key during the divorce process, and you will need to ensure that you have the following documents organised and on hand:
- Marriage certificate: Ideally, you will need the original, although a certified copy is acceptable. If it is in another language, you will need to have it translated into English.
- Proof of Australian citizenship or residency: Documents including passports or a birth certificate.
- Identification documents: A valid driver’s licence, photo ID cards or passport.
- Details of children under 18: Names and dates of birth for any children under 18.
Step 4: Lodge Your Application Online
Divorce applications in Australia need to be filed through the Federal Circuit and Family Court of Australia (FCFCOA) via the Commonwealth Courts Portal.
The whole process is fairly straightforward and includes:
Making an account on the Commonwealth Courts Portal, or logging in to an already-existing account
- Complete the divorce application online.
- Upload your marriage certificate and any other relevant documents.
- Pay the filing fee
- Submit your application
Make sure your application is correct, as any errors can result in delays or rejection.
Once your application has been submitted successfully, the courts will review your application and provide you with a divorce hearing date.
Step 5: Serve the Divorce Papers (for Sole Applications)
If you are filing a sole divorce application, you need to serve the papers to your spouse at least 28 days before the hearing date (or 42 days if they are overseas).
Service of the divorce application needs to be done by:
- Registered post
- A process server (a professional who delivers legal documents)
- Via arrangements made by your lawyer
Your spouse can respond to the divorce application, but they cannot prevent it from proceeding just because they do not want to get a divorce.
Step 6: Attend the Court Hearing (If Required)
Some divorce cases don’t require in-person court hearings. It depends primarily on the following situations:
| Joint Application | No children under 18 | Court attendance is not required |
| Sole Application | No children under 18 | No attendance required if you don’t want to attend court |
| Joint/Sole Application | Children under 18 | Attendance may be required by the court to ensure the proper custody arrangements are in place |
Most court hearings are straightforward and quick if required. You may not need to attend court if the application is joint and there are no children under 18. For more complex cases, your lawyer can advise what to expect.
Step 7: Receive Your Divorce Order
If the court is satisfied that all legal requirements have been met, it will grant a Divorce Order. The divorce is legally finalised one month and one day after the order is made.
How Long Does the Divorce Process Take in Australia?
The timeline for the divorce process differs for each case, depending on the complexity, the law firm, and how you and your partner are getting along.
But the timeline generally follows the following:
- Preparation and filing time: Up to a few weeks
- Court processing time: Usually 3-4 months from filing to the divorce hearing
- After the order is finalised: A further one month and one day before your divorce is finalised.
Most couples are legally divorced around 5 months after they file their application for divorce.
Common Mistakes People Make During the Divorce Process in Australia
Making mistakes during the divorce process can lead to expensive delays or even the rejection of a divorce application.
Filing Too Early
If you apply before you and your partner have been separated for 12 months, your application will be rejected.
Invalid Marriage Certificate
If your marriage certificate is ineligible or written in another language, it may cause costly delays. Ensure your marriage certificate has a certified English translation and is legible.
Incorrect Service of Documents
If you deliver your divorce application to your spouse yourself, it can render the service invalid, and you will need to serve the papers again.
Assuming a Divorce Covers Everything
A divorce does NOT resolve other issues, such as parenting and child custody arrangements, child support, spousal maintenance or the division of property and financial assets.
All of these need to be resolved in separate legal proceedings.
Not Considering the Impact On Children
A divorce will not be finalised if the court deems that there are unsatisfactory custody or parenting arrangements in place for children under 18. The safety and security of young children are always considered during the divorce process.
Not Hiring a Divorce or Family Lawyer
While you technically do not need to hire a divorce lawyer to get a divorce, it is strongly recommended that you do, as there are always complications that may arise, and a divorce lawyer will know how to handle these potential issues, as well as be able to guide you through the legal landscape.
A lawyer can help in the following situations:
- You have children under 18 and need to organise custody arrangements.
- You are filing a sole application and have a complicated relationship with your spouse.
- Your spouse already has a lawyer.
- Your marriage certificate is missing or written in another language.
At Meredith Lawyers, we have years of experience handling divorce applications and have seen firsthand how emotionally draining and stressful the divorce process can be. This is why it’s so important to have an experienced and compassionate family lawyer helping you navigate your way through the legal process.
We are committed to making the divorce process as simple and stress-free as possible. Contact us at 1300 537 306 to find out how we can help you with your divorce application.
FAQs
Can I Still File for Divorce if My Spouse Doesn’t Want One?
Yes. In Australia, one party cannot prevent a divorce. If your spouse isn’t in agreement, you can file a sole application. As long as you follow the 12-month separation rule and have all the necessary documents, a divorce will still be granted, with or without your spouse’s agreement.
Does It Matter Who Files for Divorce First?
No, it doesn’t matter who files for divorce first. There are no legal advantages.
What is the Difference Between a Separation and a Divorce?
Separation is simply when a relationship ends, while divorce is the legal and formal end of your marriage. You can only become legally divorced when the Divorce Order has been granted.
Can My Spouse and I Still Live Together During the Separation Period?
Yes. This is known as being ‘separated under one roof’ and is common, especially for financial and child support purposes. However, you will need to provide extra evidence that proves that you and your spouse are living separate lives and have no chance of reconciliation.
Your divorce lawyer will tell you what kind of evidence you need.
What Happens to My Children During the Divorce Process?
Custody and parenting arrangements are not organised during the divorce process. These are determined during consent orders or parenting orders, and require separate legal processes.
The court always ensures that proper custody arrangements are in place for children under 18 before a divorce is officially granted.
What if I Don’t Know Where My Spouse Is?
If your spouse cannot be found, you will need to apply to the court for permission to serve documents via a different method or for a substituted service order.
