A divorce ends your marriage. It does not divide your property, it does not settle the arrangements for your children, and it does not sever your financial relationship with your former spouse. Those are separate processes, and confusing them is perhaps the most expensive mistake people make.
The Short Answer
There is only one ground for divorce in Australia: that the marriage has broken down irretrievably. You establish it by showing that you have been separated for at least twelve months. That is the whole test. No one has to prove anything against the other, and no one has to defend themselves.
You do not need your former spouse’s agreement. You can apply on your own. You do not need to have resolved your property or the arrangements for your children first, and in many cases you should not.
You can be separated while still living in the same house, which is common where neither party can afford to move out immediately. The court will need evidence that the relationship has genuinely ended rather than just the marriage having become unhappy.
Here is the trap. Once a divorce order takes effect, a twelve-month clock starts running on your right to apply to the court for a property settlement or spousal maintenance. After twelve months you need the court’s permission, which is only given where real hardship would otherwise result. We regularly see people who obtained a divorce promptly because it felt like progress, left the property settlement for later, and then discovered that later had arrived. If your property matters are unresolved, there is often no advantage in rushing the divorce, and sometimes a significant disadvantage.
The application itself is straightforward and is made online. A divorce becomes final one month and one day after the order is made, and you cannot remarry before then.
The rest of this page sets out the law properly, with the sections of the Act and the leading cases, for readers who want that detail. If you would rather talk it through, we are glad to do that instead. Please contact us for an introductory session, and, if you would like, a strategy session, and we can give you some tailored advice.
The Ground for Divorce
Section 48 of the Family Law Act 1975 (Cth) provides that a divorce order may be made only on the ground that the marriage has broken down irretrievably. That ground is established by proof that the parties separated and have lived separately and apart for a continuous period of not less than twelve months immediately preceding the date of the application.
Australia has had no-fault divorce since the Act commenced in 1976. The conduct of the parties is irrelevant to the making of a divorce order: adultery, desertion and cruelty have no bearing on whether a divorce is granted. That is not to say conduct is irrelevant to everything. Since 10 June 2025 the Act has expressly required a court dividing property to consider the effect of family violence on a party’s ability to make contributions, under s 79(4)(ca), and its effect on that party’s current and future circumstances, under s 79(5)(a). The definition of family violence in s 4AB(2)(g) now expressly includes economic or financial abuse. Fault does not affect the divorce. It may well affect the settlement.
A brief resumption of cohabitation does not necessarily restart the twelve-month period. Under s 50, where the parties resume cohabitation on one occasion only, for a period of less than three months, and then separate again, the periods before and after are added together -but the period of cohabitation itself is not counted.
Jurisdiction
The court has jurisdiction where either party is an Australian citizen, is domiciled in Australia, or is ordinarily resident in Australia and has been so resident for twelve months immediately before the application. A marriage entered into overseas is recognised in Australia if it was valid where it was performed, and can be dissolved here on that basis.
Separation Under One Roof
Separation is a question of fact, not where somebody resides. Parties may be separated while continuing to occupy the same dwelling, and s 49(2) expressly contemplates it.
Where separation under one roof is asserted, the court requires evidence directed to the change in the nature of the relationship rather than to the living arrangements alone. The matters ordinarily addressed are the cessation of a shared household, the separation of finances, the absence of a sexual relationship, the division of domestic tasks, and whether the parties communicated the separation to family, friends and relevant institutions such as Centrelink.
An affidavit from the applicant is required. The Court ordinarily also requires an affidavit from a third party - a family member, friend or neighbour - who can speak to the circumstances from their own knowledge. This is a common source of procedural difficulty in otherwise straightforward applications, and it is worth identifying a suitable deponent early rather than at the point of filing.
Applications Where There are Children Under 18
Where there is a child of the marriage under the age of eighteen, s 55A provides that a divorce order does not take effect unless the court is satisfied that proper arrangements have been made for the care, welfare and development of that child. The court is not adjudicating the parenting arrangements at this stage. It is satisfying itself that the question has been addressed.
Where an applicant makes a sole application and there are children under eighteen, attendance at the hearing is ordinarily required. Joint applications do not require attendance.
Applications Within Two Years of the Marriage
Where an application for a divorce order is filed within two years after the date of the marriage, s 44(1B) requires that a certificate be filed with the application, stating that the parties have considered a reconciliation with the assistance of a family counsellor or a nominated individual or organisation, and signed by that person or on that organisation’s behalf. Where such a certificate is not filed, the application may only proceed with the leave of the court under s 44(1C).
Leave is commonly sought where counselling is not appropriate - where there has been family violence, or where the other party cannot be located - and is supported by an affidavit setting out the reasons.
The Relationship Between Divorce, Property and Parenting
This is the point most commonly misunderstood. A divorce order does not divide property, does not resolve parenting arrangements, and does not sever the financial relationship between the parties. It ends the marriage and nothing more.
Divorce does, however, start a clock. Under s 44(3), proceedings for property settlement or spousal maintenance must not be instituted more than twelve months after the date on which the divorce order took effect, except with the leave of the court or the consent of both parties. Leave will not be granted unless the court is satisfied that hardship would otherwise be caused to a party or a child: s 44(4).
Parties who obtain a divorce and then defer the property settlement indefinitely can find that the limitation period has expired. The remedy - an application for leave - adds cost, adds delay, and is not assured.
De facto parties are not affected by the divorce clock, because they do not divorce. Their limitation period runs from the end of the relationship: two years, under s 44(5), with leave governed by s 44(6). The difficulty in those matters is usually establishing when the relationship ended rather than tracking the period from a court order.
Service and Procedure
A sole application must be served on the respondent. Service must ordinarily be effected at least twenty-eight days before the hearing where the respondent is in Australia, or forty-two days where the respondent is overseas. Where the respondent cannot be located, an application may be made for substituted service or for dispensation of service, supported by evidence of the enquiries undertaken.
Under s 55, a divorce order takes effect at the expiration of one month from the making of the order, or from the making of an order under s 55A, whichever is the later. In practice the order is treated as becoming final one month and one day after it is made. Until that date the parties remain married, and neither may remarry.
Where Divorce Becomes Contested
Divorce applications themselves are rarely contested, and where they are, the grounds are narrow - the fact of separation, the twelve-month period, jurisdiction, or the validity of the marriage. What is frequently contested is everything running alongside the divorce: the asset pool, the treatment of a business or a trust, the arrangements for the children, and the adequacy of disclosure.
A matter described by a client as a contested divorce is almost never a dispute about the divorce. It is a property or parenting dispute which happens to be occurring at the same time. Identifying which of those disputes is the real one, and directing resources accordingly, is the first useful step in the conduct of the matter.
The point of this guide, in one sentence. The divorce application is administrative and cheap. The consequences that flow from when you file it are neither administrative nor necessarily cheap, and they are capable of causing real prejudice to a party who attends to the divorce before attending to the property settlement.
The process, step by step
| Stage | What happens | Typical timeframe |
| Eligibility | We confirm the twelve months of separation, jurisdiction, and whether a counselling certificate is needed. Where separation was under one roof, we identify the evidence and a third-party deponent. | One week |
| Application | A joint or sole application is prepared and filed electronically through the Commonwealth Courts Portal, with the marriage certificate and any supporting affidavits. | One to two weeks |
| Service | For a sole application, the respondent is served and an acknowledgement or affidavit of service is filed. Where the respondent cannot be found, substituted or dispensed service is sought. | Two to six weeks |
| Hearing | Most applications are determined without attendance. Attendance is ordinarily required for a sole application where there is a child under 18. | Commonly two to four months from filing |
| Order takes effect | One month and one day after the order is made, subject to s 55A where there are children under 18. | One month and one day |
| The clock | The twelve-month period under s 44(3) begins on the date the order takes effect. | Twelve months |
Cost
A divorce is the least expensive thing we do. The filing fee is set by the Commonwealth and a reduced fee is available to holders of certain concession cards and in cases of financial hardship.
Complexity, and therefore cost, arises in a small number of situations: separation under one roof, a respondent who cannot be located, a marriage solemnised overseas where documents require translation, or a dispute about the date of separation. None of these is unusual and all are manageable.
Contact a divorce lawyer at Testart today.
Common Questions
Do we both have to agree to the divorce?
No. You can apply on your own. Your former spouse does not have to consent, and there is nothing they can do to prevent a divorce once twelve months of separation is established.
Do I have to go to court?
Usually not. Most divorce applications are decided without anyone attending. The exception is a sole application where there is a child of the marriage under eighteen, in which case attendance is ordinarily required.
Can we be separated while living in the same house?
Yes. Separation is a question of fact, not of address, and s 49(2) of the Act expressly allows for it. You will need additional evidence, including an affidavit from a third party who can speak to the circumstances.
Do I need to be divorced before I can sort out property?
No, and often you should not be. Property settlement can be resolved at any time after separation. Obtaining the divorce first starts a twelve-month limitation period under s 44(3), so the sequence should be a deliberate decision.
What if I cannot find my former spouse?
You can apply for substituted service - permission to serve documents another way - or for service to be dispensed with entirely. Either application requires evidence of the enquiries you have made to locate them.
How soon can I remarry?
Not until the divorce order has taken effect, which is one month and one day after the order is made. You will also need to give the required notice of intended marriage, so allow additional time.
We married overseas. Can we divorce in Australia?
Generally yes, provided the marriage is recognised here and the jurisdictional requirements are met. You will need the marriage certificate and, if it is not in English, a translation with the translator’s affidavit.
Does the divorce affect my will or my superannuation nomination?
It can, and this is regularly overlooked. Divorce affects the operation of a will, and a binding death benefit nomination in favour of a former spouse may no longer operate as intended. Review both once the divorce takes effect.
