Divorce is the legal end of a marriage. Australia has ‘no fault’ divorce. This means that when granting a divorce, the Court does not consider why the marriage ended or what caused the marriage to breakdown. The only ground for divorce is that the marriage broke down and there is no reasonable chance that the parties will resume their relationship as a married couple.
The granting of a divorce does not determine issues of financial support, property division or arrangements for children but there are a number of legal consequences that can flow from a divorce order.
Can I apply for a divorce?
You must meet each of the criteria below:
Separated for at least 12 months
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life.
It is possible to be separated but remain living in the same home during the 12 months before applying for divorce. This is known as being separated but living under one roof.
Able to apply for divorce in Australia
You can apply for a divorce in Australia if either you or your spouse:
- are an Australian citizen, or
- regard Australia as your home and intend to live in Australia indefinitely, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Have your marriage certificate
You must provide the Court with a copy of your marriage certificate.
If your marriage certificate is not in English, you need to file an Affidavit translation of marriage certificate attaching both a copy of the original marriage certificate and the translation that was prepared.
If you are not able to find your marriage certificate or to obtain an official copy, you must provide evidence to show that the marriage occurred and explain why it is not possible to obtain formal proof of your marriage. If you cannot provide proof that you are legally married, you may need to file an Initiating Application for a declaration that your marriage is valid.
Arrangements for children
A divorce does not determine what parenting arrangements should be in place for children. However, before a divorce can be granted, the Court must make one of the following declarations:
- That there are no children of the marriage under 18 years of age,
- That there are satisfactory arrangements in place for any children under 18 years of age, or
- That the Court is satisfied that there is a good reason the divorce should be granted even if there are not satisfactory arrangements in place for the children.
The Application for Divorce will ask you to provide information about any children who were treated as members of the family prior to separation. It does not matter if the children are not your biological children.
You need to provide sufficient detail about how the child/ren spend time and communicate with each parent if at all, their education, health and financial support, and the reasons those arrangements are in place. If you cannot give this information, you will need to explain why.
If the information given is not sufficient, the Court may adjourn your application for you to provide more information.
The granting of a divorce does not decide issues about finances or property and maintenance or parenting arrangements for your children.
Other family law proceedings
Time limitations exist if parties are divorced and wish to apply for financial or property orders. Once a divorce is final, you have 12 months to file an application for financial or property orders.
If you do not file in that time-frame, you will require permission from the Court before filing an application, and you may be prevented from seeking financial or property related orders. See Financial or Property for more information.
You should consider getting legal advice about other potential consequences of a divorce including in relation to your Will.
When can I remarry?
You must not remarry until your divorce order becomes final. In most cases, this is one month and one day after the divorce hearing. The divorce process takes time, and you should not assume the divorce will be granted at the first court hearing.
If your application is deficient or the Registrar has questions about a particular part of your application, you may be asked to provide more information, this may involve an adjournment if you are required to file more evidence.
Further reading
How to apply for a divorce (PDF, 1.1 MB)
This flowchart shows you how to apply for a divorce in the Court, whether you are doing so together with your spouse, or on your own. It also includes checklists of key documents you may need to provide to the Court in support of your application, and helpful links to other resources that may assist.
The Family Law Practice Direction – Divorce proceedings (FAM-DIVORCE) sets out the procedure the Court will follow to determine your divorce application.
Legal advice
If you need help to complete the application or are unsure about whether you are eligible to file for divorce, you should obtain legal advice. For more information see Legal help.
The Family Relationship Advice Line (FRAL) can help you with free legal advice and information about services available to assist anybody with family relationship issues - call 1800 050 321 (+61 7 3423 6878 if you are overseas).
Legal Aid NSW have a step-by-step interactive guide to help you apply for a divorce in Australia, called Do Your Own Divorce. The guide includes ‘how to’ videos, checklists and links that will help you fill out the divorce application. You can access it at this website: Do Your Own Divorce - Overview
