Divorce

Content updated June 2025

A divorce is the legal termination of your marriage. Australia is a ‘no fault’ divorce jurisdiction. Accordingly, to obtain a divorce in Australia, you must satisfy the court that there has been an irretrievable breakdown of your marriage with no reasonable chance of reconciliation.

An Application for a Divorce Order is separate from proceedings about financial matters including property settlement or matters related to children and parenting issues.

Before preparing your Divorce Application, you should seek legal advice about your rights and responsibilities, as well as the impact of obtaining the divorce on your overall financial circumstances. We can provide this advice and assist you to prepare your Divorce Application

When can I apply for a divorce?

You can file an Application for Divorce after you and your spouse have been separated for a period of at least 12 months.

What if we are separated but still living under the same roof?

If you and your former spouse have separated but continue to live under the one roof, then you will need to file a supporting affidavit, showing that whilst you and your spouse live in the same home, you have separated. You may also need to file an additional affidavit by a supporting witness, such as a family member, friend or neighbour, who can verify your separation from their observations of you and your spouse since separation.

How do I apply for a divorce?

By filing an Application for Divorce on the Commonwealth Courts Portal in the Federal Circuit and Family Court of Australia.

You and your spouse may make the Application together (known as a "Joint Application"), or you may make the Application by yourself (a "Sole Application").

If you make a Joint Application, then you do not need to prove that service of the Divorce Application has been effected on the other party. This can save on the associated costs of service. You may also agree to equally share the filing fee with your former spouse.

Legal Aid NSW have a step-by-step interactive guide called ‘Do Your Own Divorce’ which contains useful information.

I have been served with an Application for Divorce. Do I have to agree with it?

Australia is a 'no-fault' jurisdiction. This means that when granting a divorce, a court does not need a ‘reason’ for the divorce.

When a Divorce Application comes before the court, it will grant the Divorce Order if:

• you and your spouse were validly married;
• you meet the residence requirements to give the Court jurisdiction over your divorce;
• you have been separated for 12 months or more; and
• you have validly been served with the Divorce Application and agree with the contents of the divorce, for example, the separation date.

If you are served with a Divorce Application and there are any errors in it, you should obtain legal advice about preparing a response or an affidavit which identifies those errors for the court.

Do I have to be an Australian citizen to get a divorce in Australia?

You do not need to be a citizen, but you or your spouse do need to have a sufficient connection with Australia, such as Australian citizenship or permanent residence in Australia.

Do I have to attend the Divorce hearing?

There is no automatic requirement for attendance at a Divorce Hearing. Parties may choose to attend if they want to do so. The Court retains its discretion to require that the parties attend Court if it is deemed necessary in the circumstances.

The Court must be satisfied that your arrangements for any children of the marriage are “proper” before it can grant the divorce. However, since changes to the law in June 2025, there is no longer an automatic requirement for sole applicants with children under 18 years of age to attend the hearing to explain the children’s circumstances. With careful drafting, the children’s circumstances can be adequately detailed on the Application for Divorce, nullifying the need for attendance at the hearing.

Does the Application for Divorce include parenting and property disputes?

A Divorce Order will end your marriage. Arrangements for property settlement and parenting matters must be dealt with separately.

Once your Divorce Order has been made, you must commence property proceedings within 12 months from the date of the divorce. It is imperative that you either file Consent Orders within that timeframe or commence proceedings in the Federal Circuit and Family Court of Australia before the expiration of the time limitation.

No limitation period applies if you need to begin parenting proceedings. However, other requirements do need to be met before you can approach a court seeking parenting orders. 

Contacting E&A Lawyers for advice or assistance

For more information or to arrange a consultation with a lawyer, you can call or email us.

📞  02 9997 2111

📧  info@ealawyers.com.au