In Australia, divorce is generally a straightforward legal process where the eligibility requirements are met. However, it is important to understand that obtaining a divorce is different from resolving property settlements, parenting arrangements and other financial matters.

At KMB Legal, our Gold Coast family lawyers assist clients with divorce applications and the legal issues that can arise following separation.

Who Can Apply for Divorce in Australia?

Australia has a no-fault divorce system under the Family Law Act 1975 (Cth). This means the Court does not consider who was responsible for the breakdown of the marriage.

The only ground for divorce is that the marriage has broken down irretrievably, demonstrated by the parties having separated for at least 12 months with no reasonable likelihood of resuming their relationship.

To apply for divorce in Australia, you must generally satisfy the following requirements:

• Separation: You and your spouse have been separated for at least 12 months and one day before filing the application.
• Connection to Australia: You or your spouse must meet the relevant Australian citizenship, domicile or ordinary residence requirements.
• Valid marriage: You must provide a marriage certificate or other evidence of the marriage accepted by the Court.
• Arrangements for children: If there are children of the marriage under 18, the Court must be satisfied that proper arrangements have been made for their care, welfare and development, or that there are circumstances justifying the divorce being granted despite those arrangements.

You do not need your spouse's agreement to obtain a divorce, provided you satisfy the legal requirements.

How to Apply for Divorce in Australia: Five Steps

Step 1: Confirm You Meet the Divorce Requirements

Before applying, confirm that you have been separated for at least 12 months and one day and meet the Australian jurisdictional requirements.

You do not necessarily need to have lived in separate homes throughout the separation period. In some circumstances, spouses can be considered separated while continuing to live under the same roof.

If you reconciled for a period during separation, additional rules may apply when calculating the required 12-month period.

Step 2: Decide Whether to Make a Joint or Sole Application

There are two ways to apply for divorce.

Joint divorce application

A joint application is made by both spouses. Both parties participate in the application process, and formal service of the application on the other spouse is not required.

A joint application can be a practical option where the parties are communicating and agree to proceed with the divorce.

Sole divorce application

A sole application is made by one spouse without the other spouse joining the application.

You do not need your spouse's consent, but you will generally need to arrange for the application and supporting documents to be formally served on them.

Special requirements apply where your spouse cannot be located or service cannot be completed in the usual way.

Step 3: Prepare and File Your Divorce Application

Divorce applications are generally filed electronically through the Commonwealth Courts Portal and dealt with by the Federal Circuit and Family Court of Australia.

You will usually need:

• A copy of your marriage certificate.
• Information about the date of separation.
• Details of any children under 18.
• Information establishing your connection to Australia, where required.
• Supporting affidavits or other documents if your circumstances require them.

Additional documentation may be necessary if you were married overseas, separated under one roof or cannot locate your spouse.

Once the application is filed and the fee is paid, the Court will allocate a hearing date.

Step 4: Serve the Application if Required

If you make a sole application, you must generally serve the divorce documents on your spouse within the required timeframe.

The usual minimum service periods are:

• 28 days before the hearing if your spouse is in Australia.
• 42 days before the hearing if your spouse is overseas.

You cannot personally serve the divorce application on your spouse yourself. Service must be carried out using an accepted method, and evidence of service must be filed.

If your spouse cannot be located or ordinary service is impracticable, you may be able to apply for substituted service or dispensation of service.

Step 5: Attend the Hearing if Required and Obtain Your Divorce Order

Not every divorce application requires attendance at a Court hearing.

Whether attendance is necessary depends on factors including whether the application is joint or sole, whether there are children under 18, and whether there are outstanding issues concerning service or the application.

The Court will consider whether the legal requirements for divorce have been satisfied.

If the divorce is granted, it ordinarily becomes final one month and one day after the divorce order is made, unless the Court makes a different order.

You should not arrange to remarry until your divorce has taken effect.

How Much Does a Divorce Cost in Australia?

The cost of a divorce depends on the Court filing fee and whether you require legal assistance.

The Federal Circuit and Family Court of Australia charges a filing fee for divorce applications. Eligible applicants may qualify for a reduced fee.

Court fees are reviewed periodically, so it is important to check the current amount before filing.

If you engage a family lawyer, legal fees will depend on the work required. A straightforward joint application will generally involve less work than a sole application involving difficulties with service, separation under one roof or disputed circumstances.

At KMB Legal, we can discuss the process and anticipated legal costs based on your individual circumstances.

How Long Does a Divorce Take in Australia?

You must be separated for at least 12 months and one day before applying for divorce.

After filing, the timeframe depends on the Court's hearing availability, whether the application is complete, and whether there are any issues with service or supporting evidence.

If the Court grants the divorce, the order ordinarily takes effect one month and one day later.

Accordingly, while the divorce application itself may be relatively straightforward, the overall process can take several months after filing.

Can You Get Divorced While Living Under the Same Roof?

Yes. It is possible to be legally separated while continuing to live in the same home.

This is commonly referred to as separation under one roof. For example, spouses may remain in the family home for financial reasons, because of their children or while alternative accommodation is being arranged.

However, simply stating that you were separated may not be sufficient. The Court may require affidavit evidence explaining how the marital relationship changed.

Relevant circumstances may include:

• Sleeping in separate bedrooms.
• Changes to financial arrangements and household responsibilities.
• Whether you continued to socialise or present yourselves as a couple.
• Whether family members or friends were informed of the separation.
• Changes to the emotional and practical aspects of the relationship.

The evidence required will depend on the circumstances, including whether the application is joint or sole.

What if You Were Married Overseas?

You can potentially obtain a divorce in Australia even if your marriage took place overseas.

You must satisfy the Australian jurisdictional requirements and provide evidence of a valid marriage.

If your marriage certificate is not in English, you will generally need to provide an English translation and the required supporting documentation.

Issues can arise where marriage certificates are incomplete, difficult to read or unavailable. Legal advice may assist in determining what alternative evidence or supporting affidavit material is needed.

What Happens if You Have Children?

A divorce application does not automatically determine where children live, how much time they spend with each parent or how parental responsibility is exercised.

These are separate family law matters.

Where there are children of the marriage under 18, the Court must consider whether proper arrangements have been made for their care, welfare and development before granting a divorce, subject to the statutory exception.

Parents may be able to reach agreements about parenting arrangements through negotiation, mediation or family dispute resolution.

Depending on the circumstances, those arrangements may be documented in a parenting plan or formalised through consent orders.

Where an agreement cannot be reached, Court proceedings may be necessary.

The paramount consideration in determining parenting arrangements is the best interests of the child. For more information about parenting arrangements following separation, read our article on equal shared parental responsibility and family law.

Does Divorce Automatically Divide Your Property?

No. Divorce and property settlement are separate legal processes.

A divorce legally ends the marriage. It does not automatically divide assets, transfer ownership of property, determine spousal maintenance or resolve financial arrangements.

A property settlement may involve consideration of:

• The family home and investment properties.
• Bank accounts, savings and liabilities.
• Superannuation.
• Businesses and company interests.
• Family trusts and other financial structures.
• Financial and non-financial contributions.
• The parties' current and future circumstances.

Importantly, you do not need to wait until you are divorced to negotiate or formalise a property settlement.

Is There a Time Limit for Property Settlement After Divorce?

For married couples, an application for property settlement or spousal maintenance must generally be commenced within 12 months after the divorce becomes final, unless an exception applies.

If this period expires, Court permission may be required to commence proceedings.

For this reason, it is often advisable to obtain legal advice about property settlement before finalising a divorce, particularly where there are substantial assets, businesses, trusts or complex financial arrangements.

This article provides general information about Australian family law and is not a substitute for legal advice tailored to your circumstances.