Divorce: Overview

Divorce is the legal end of a marriage (dissolution of marriage). Australia has ‘no fault’ divorce. This means that when granting a divorce, the Court does not consider the reason/s the marriage ended. Neither spouse needs to prove that the other did (or did not) do something which caused the breakdown of the marriage. The only ground for divorce is that the marriage broke down and there is no reasonable chance that the parties will get back together.

The Federal Circuit and Family Court of Australia (the Court) has the jurisdiction or power to deal with divorce under Part VI  of the Family Law Act 1975.

The granting of a divorce does not determine issues of financial support, property division or arrangements for children. It is simply a formal recognition that the marriage has ended.

Can I apply for a divorce?

You can apply for a divorce in Australia if either you or your spouse:

  • regard Australia as your home and intend to live in Australia indefinitely, or
  • are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

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 live together in the same home and still be separated. This is known as being separated but living under one roof.

Same-sex married couples are treated the same as other married couples and can apply for divorce if the marriage is recognised in Australia and you meet the requirements for divorce under the Family Law Act 1975.

If you were married overseas and your foreign marriage is recognised in Australia (in accordance with Part VA of the Marriage Act 1961), you must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to upload an English translation of the marriage certificate, together with an affidavit translation of marriage certificate from a certified translator.

If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. You will be asked to provide information about any children of the marriage, or who were treated as members of the family in your application. Be sure to provide sufficient detail about the how the child/ren spend time and communicate with each parent, their education, health and financial support.

What about my children and/or finances and property?

The granting of a divorce does not decide issues about finances, property and maintenance or parenting arrangements for your children.

To make arrangements about these issues you can:

  • participate in dispute resolution to resolve or narrow the issues in dispute
  • make an agreement with your spouse and file it with the Court, known as consent orders, or make a parenting plan or financial agreement, or
  • seek orders from a court, where you and your spouse cannot reach an agreement (time limits may apply).

The granting of a divorce does start limitation periods (time limits) for applying to the Court in relation to most financial matters. Most financial/property proceedings arising from the breakdown of a marriage must be started within 12 months of the divorce order taking effect, unless otherwise agreed with the other party.

If you need help to make arrangements for your children or finances, contact the Family Relationship Advice Line (FRAL). FRAL is a national telephone service that helps families affected by relationship or separation issues, including information on parenting arrangements after separation. It can also refer callers to local services that provide assistance.

Family Relationships Advice Line

More information can be found under Children and Finances/Property.

When can I remarry?

You should not make plans to remarry until your divorce order is finalised (in most cases, 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.

If you intend to remarry, you must give your marriage celebrant a Notice of intended marriage at least one month before the wedding date, and comply with other requirements of the Marriage Act 1961. You may complete and lodge the Notice of intended marriage with your authorised celebrant before the divorce order is finalised, but the celebrant must sight a copy of the divorce order before the wedding can take place.
 

Practice directions

Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.

Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.

In general, practice directions are issued to:

  • complement particular legislative provisions or rules of court
  • set out more detailed procedures for particular types of proceedings, and
  • notify parties and their lawyers of matters which require their attention.

Below are links to the practice directions that apply to this area of law:

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.