Divorce is the one part of separating that is genuinely procedural. It has a clear set of requirements, a form, and a predictable timeline. That is worth knowing early, because for most people the divorce itself turns out to be the least complicated thing on their list.
What follows is a plain English walk through of how a divorce application works in Australia, what you have to be able to show, and the one point that catches people out more than any other: a divorce order settles nothing about your property or your children.
Divorce in Australia is governed by the Family Law Act 1975. There is only one ground: that the marriage has broken down irretrievably, and that there is no reasonable likelihood of you getting back together.
The Court does not consider who was at fault, and it will not hear about who did what to whom. That evidence belongs, if anywhere, in a parenting or property matter. In a divorce application it is irrelevant, which many people find a relief and some find frustrating.
There are three requirements, and all three must be met before an application can be filed.
How long you were married does not matter. Until June 2025, couples married for less than two years had to consider counselling and file a certificate before they could apply. That requirement has been removed from the Family Law Act. The twelve month separation period is the only timing rule, and it applies however short or long the marriage was.
Plenty of couples separate long before either of them can afford to move out. The law recognises this, and you can still be separated while living in the same house. You will simply need to prove it.
On a sole application you must file an affidavit yourself, and you should also file one from an independent person, often a family member, friend or neighbour, who can speak to the change in the relationship. On a joint application you each file your own, and an independent person’s affidavit is needed if only one of you is able to swear one. The kind of thing that matters is practical: sleeping arrangements, whether you still share meals and finances, whether you do each other’s washing, whether you attend social occasions together, and whether family and friends were told.
Separation under one roof is ordinary and it is granted regularly. It simply takes more preparation, and the evidence is best organised while events are fresh.
You can file a sole application or a joint application, and the choice affects what follows.
Applications are filed electronically through the Commonwealth Courts Portal. Western Australia is the exception: it has its own state family court, the Family Court of Western Australia, and applications there are filed through the eCourts Portal of Western Australia. The Court charges a filing fee, and a reduced fee is available to some applicants, including holders of certain concession cards and people who can show financial hardship. Fees change, so check the current amount on the Federal Circuit and Family Court of Australia website.
Usually not. Most divorce hearings are short, listed in bulk and dealt with without anyone appearing.
You do have to attend, or be represented by a lawyer, if your spouse files a Response to Divorce that contests the divorce or raises a question about the Court’s jurisdiction. In that case the hearing goes ahead in open court. You can also simply ask to attend if you would rather be there. Hearings before a Registrar are held by web conference.
Until June 2025, an applicant making a sole application who had a child of the marriage under 18 had to attend. That rule has been removed, and attending is now optional for them as it is for everyone else.
What has not changed is that where there is a child of the marriage under 18, the divorce order does not take effect until the Court is satisfied that proper arrangements have been made for that child. That does not mean parenting orders have to be in place. It means the Court wants to know where the children are living, who is caring for them, how their schooling and health needs are being met and what time they spend with each parent. That information comes from the application itself, so the Court can be satisfied without you appearing.
If you would rather not appear at all and your circumstances allow it, that is one of several good reasons to talk to a divorce lawyer before you file rather than after.
From filing to a final divorce is commonly three to four months, assuming no complications. Built into that is a waiting period: under the Family Law Act a divorce order takes effect one month after the Court makes it, which in practice usually means the divorce becomes final one month and one day after the hearing.
It can be later. Where there is a child of the marriage under 18, the order does not take effect until the Court has also made its declaration about arrangements for that child. The Court can extend the period, or shorten it where there are special circumstances, and an appeal pushes the date out.
Until that date passes you are still legally married, which matters if either of you intends to remarry. Wedding dates should never be booked on the strength of a hearing date.
This is the point worth reading twice. A divorce order ends the marriage. It does nothing about the house, the superannuation, the debts or the children. Those are separate processes and they can be dealt with before a divorce, alongside it, or after it.
Leaving them until after carries a real risk, because divorce starts a clock. Once a divorce order takes effect, you have 12 months to apply to the Court for a property settlement or spousal maintenance. After that you need the Court’s permission to apply at all, and permission is not automatic.
Many separating couples never need a courtroom for any of it. Where you can still talk, mediation and consent orders are usually faster, cheaper and far less corrosive than litigation, and our Shellharbour divorce lawyers and Wollongong team can talk you through which path suits your circumstances.
Everything above is general information about how the law works. It is not advice about your family, because no article can be. The details that decide an outcome usually only come out in a conversation.
If you are counting down your 12 months, use the time. Sorting the property and parenting questions before the divorce clock starts is the most useful thing you can do.
If you are ready to move forward or you simply want to understand where you stand, contact South Coast Family Law Group today (02) 4202 6644. Your privacy is paramount. All enquiries are confidential.
