Divorce — FAQs

Am I eli­gi­ble to apply for divorce in Australia?

If you want to apply for a divorce in Aus­tralia either you or your spouse need to have some con­nec­tion with Aus­tralia. Usu­al­ly this means that at least one of you:

• regards Aus­tralia as your home and intends to live here indef­i­nite­ly; or

• is an Aus­tralian cit­i­zen; or

• has lived in Aus­tralia for the 12 months imme­di­ate­ly before fil­ing for divorce.

When can I apply for a divorce?

You can apply for a divorce once you have been sep­a­rat­ed from your husband/​wife for a peri­od of at least 12 months. There is no abil­i­ty for the Court to grant a divorce if you have not been sep­a­rat­ed for at least 12 months.

What is separation?

Sep­a­ra­tion occurs when one par­ty forms an inten­tion that the mar­riage is over and com­mu­ni­cates that inten­tion to the oth­er par­ty – you must let the oth­er par­ty know that you regard the mar­riage is over, but do not require their agree­ment. In cer­tain cir­cum­stances sep­a­ra­tion can take place whilst you are both still liv­ing under the one roof. 
If you con­tin­ue to reside under one roof, you and a wit­ness will need to pro­vide an affi­davit (a sworn state­ment of evi­dence), about your sep­a­ra­tion. Gen­er­al­ly, this affi­davit will set out:

• Changes in sleep­ing arrange­ments – i.e. sep­a­rate bedrooms;

• Pub­lic indi­ca­tors of sep­a­ra­tion – advis­ing fam­i­ly and friends, change in social media sta­tus, ceas­ing to socialise together;

• Ceas­ing to do home duties for each oth­er – such as doing own laun­dry, eating/​cooking sep­a­rate­ly, car­ing for the chil­dren separately;

• Sep­a­ra­tion of finances; and

• Pro­vid­ing rea­sons as to why you remained under one roof – in Syd­ney, the costs of one par­ty mov­ing out are often a con­tribut­ing factor.

What are the grounds for divorce?

There is only one ground for divorce, which is that the mar­riage has bro­ken down irre­triev­ably, as evi­dence by par­ties being sep­a­rat­ed for 12 months.

How do I file for divorce?

You need to com­plete an Appli­ca­tion for Divorce and lodge it at the Fed­er­al Cir­cuit Court of Aus­tralia. The divorce has a fil­ing fee payable direct­ly to the court. You then need to serve a copy of the Appli­ca­tion for Divorce on your husband/​wife.

Whilst the Fam­i­ly Law Courts web­site has a very help­ful ​“do it your­self” divorce kit, it may be worth­while retain­ing a lawyer to act on your behalf in con­nec­tion with the divorce pro­ceed­ings as your divorce can have con­se­quences for your prop­er­ty and chil­dren’s proceedings.

Can I oppose an Appli­ca­tion for Divorce?

Yes. If you and your part­ner have not been sep­a­rat­ed for 12 months, or if prop­er arrange­ments have not been made for your chil­dren, you may be able to oppose the Appli­ca­tion for Divorce. Gen­er­al­ly, how­ev­er, the Courts are reluc­tant not to grant divorces where par­ties have been sep­a­rat­ed for 12 months, and the for­mal­i­ties of ser­vice have been attend­ed to. 

How do I oppose the divorce?

You will need to file a ​“Response to Appli­ca­tion for Divorce” at the Court and attend the divorce hear­ing. It may be a good idea to obtain spe­cial­ist advice from a lawyer if you wish to oppose the divorce.

What hap­pens to my Will when I divorce?

A divorce can affect the valid­i­ty of your Will. In par­tic­u­lar, if in your Will you have appoint­ed your spouse as your Execu­tor and/​or includ­ed him/​her as a ben­e­fi­cia­ry, those parts of your Will are auto­mat­i­cal­ly revoked on the day your divorce becomes final.

If you are think­ing of get­ting divorced, or have recent­ly been divorced, you should ask a lawyer to review your Will and/​or give thought to mak­ing a new Will. 

When is my divorce final?

When you file your Appli­ca­tion for Divorce you will be giv­en a hear­ing date. If every­thing is in order on the hear­ing date then your divorce will be grant­ed on that day, how­ev­er it will not become final until 1 month and 1 day after the day the divorce is grant­ed. It is only after that date that you will be free to remar­ry if you wish. The Court will issue a Divorce Order, which you can then use as offi­cial proof of your divorce.

Is there any­thing I can do to fast track my divorce?

Yes, in cer­tain cir­cum­stances it is pos­si­ble to apply to the court to fast track your divorce – although this will not involve a reduc­tion in the require­ment that you be sep­a­rat­ed for 12 months. You should seek spe­cial­ist advice from a lawyer if you wish to do so.