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. 

What is separation?

Sep­a­ra­tion occurs when one par­ty forms an inten­tion that the mar­riage is over and com­mu­ni­cates that inten­tion to the oth­er par­ty. In cer­tain cir­cum­stances sep­a­ra­tion can take place whilst you are both still liv­ing under the one roof.

What are the grounds for divorce?

There is only one ground for divorce, which is that the mar­riage has bro­ken down irretrievably.

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.

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.

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. You should seek spe­cial­ist advice from a lawyer if you wish to do so.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

Arti­fi­cial Intel­li­gence Fol­ly Called Out by Fair Work Commission

In the recent Fair Work Com­mis­sion deci­sion Mr Bran­den Dey­sel v Elec­tra Lift Co.[2025] FWC 2289, Deputy Pres­i­dent Slevin applied a crit­i­cal…

Assess­ing Scope 3 Emis­sions: An analy­sis of the impli­ca­tions of Den­man Aberdeen Muswell­brook Scone Healthy Envi­ron­ment Group Inc v MACH Ener­gy Aus­tralia Pty Ltd [2025] NSW­CA 163 (the Mount Pleas­ant decision)

Intro­duc­tionOn July 24, 2025, the New South Wales Court of Appeal (NSW­CA) deliv­ered a land­mark rul­ing in Den­man Aberdeen Muswell­brook Scone…

Work­place Rela­tion­ships: The Legal Posi­tion (Cold­play Con­cert Edition)

The recent sto­ry of col­leagues (a Chief Exec­u­tive Offi­cer and Chief Peo­ple Offi­cer (CPO)) whose appar­ent rela­tion­ship was cap­tured on…

In the News

Michael Byrnes is quot­ed in the arti­cle, Fair Work warns lit­i­gants against using Chat­G­PT”, pub­lished in The Aus­tralian on 28 August 2025:

Michael Byrnes is quot­ed in the arti­cle, ​“Fair Work warns lit­i­gants against using Chat­G­PT”, pub­lished in The Aus­tralian on 2…

Con­grat­u­la­tions | Angela Har­vey & John Trinh for being recog­nised in 2025 Doyles Guide Rankings

We’re proud to announce that Angela Har­vey has been recog­nised in the 2025 Doyles Guide as a:Rec­om­mend­ed Lead­ing Estates Lit­i­ga­tion Lawyer…

Michael Byrnes appeared on Nights with John Stan­ley on 2GB and 4BC on 25 August 2025 to dis­cuss the legal aspects of work­place surveillance

Michael Byrnes appeared on Nights with John Stan­ley on 2GB and 4BC on 25 August 2025 to dis­cuss the legal…

Sign up for our Newsletter

*Mandatory information