The divorce process and its time limits

When can you apply?

You must have been separated for at least 12 months and one day before applying for divorce. This is a minimum waiting period, not a deadline. You do not have to apply as soon as it ends.

Divorce in Australia is a no-fault process. The court does not decide who caused the marriage to end. It needs to be satisfied that the marriage has broken down and there is no reasonable likelihood of getting back together.

You or your spouse must also meet the Australian citizenship or residency requirements. These include being an Australian citizen, regarding Australia as your home and intending to live here indefinitely, or ordinarily living here for the 12 months immediately before applying. Being married overseas does not, by itself, prevent an Australian divorce. Check the court’s eligibility requirements.

You can deal with property, financial support and arrangements for children while you are still married. The waiting period for divorce does not require those matters to wait.

Separated but living in the same home

Separation can occur even while you both still live in the same home. If this applies to any part of the 12-month separation period before your application, the court will need additional evidence.

This is provided in an affidavit: a written statement sworn or affirmed before an authorised witness. It should explain how the relationship changed, including sleeping arrangements, finances, household responsibilities and how you presented yourselves to family and friends. It should also explain why you continued living together.

Depending on whether you apply alone or jointly, affidavits from your spouse or an independent person may also be needed. The court’s guidance on separation under one roof.

Applying together or on your own

A joint application is made by both spouses. Both review and sign the application, and neither needs to formally serve it on the other.

A sole application is made by one spouse. Your spouse does not have to agree to the divorce or sign your application, but they must be formally notified through a process called service.

Disagreement about property or parenting does not, by itself, prevent a divorce. Those issues are dealt with separately. If your spouse disputes whether the legal requirements for divorce are met, the court will need to consider that objection.

Applications are made to the Federal Circuit and Family Court of Australia, usually online through the Commonwealth Courts Portal. You can prepare an application yourself or ask a lawyer to do it. How to apply for divorce.

Documents and filing fees

You will need a copy of your marriage certificate. If it is not in English, a translation and an affidavit from the translator are required. Additional evidence may be needed to establish citizenship or residency, explain separation under one roof or address a missing certificate. The court’s requirements for supporting documents.

The court charges a filing fee, separate from any legal fees. Some applicants qualify for a reduced fee, including on financial hardship grounds. For a joint application, both spouses must qualify to receive the reduction. Current court fees and reduced-fee eligibility are available from the court.

Serving a sole application

Service is the formal delivery of the application and supporting documents to your spouse. The court needs proof that this has been done correctly.

The documents must generally be served:

• At least 28 days before the hearing if your spouse is in Australia.

• At least 42 days before the hearing if your spouse is overseas.

You cannot personally hand the documents to your spouse as formal service. Service by hand must be carried out by another adult. Other methods are available, but each has requirements about how service is proved.

If you cannot locate your spouse or ordinary service is not possible, you may need an order allowing another method or dispensing with service. Take advice about this early, particularly if there are safety concerns. How to serve divorce documents.

If there are children under 18

The application must explain the arrangements for children of the marriage under 18, including where they live, their time with each parent, schooling, health and financial support. This can include children treated as members of the family, not only your biological children.

The court generally needs to be satisfied that proper arrangements have been made for their care, welfare and development. If arrangements are unresolved, explain that accurately; the court may need further information.

This does not turn the divorce application into a parenting case. A divorce order does not decide where children will live or the time they will spend with each parent. More about divorce and arrangements for children.

Do you need to attend the hearing?

Many divorce applications can be decided without either spouse attending. Having children under 18 does not, by itself, make attendance compulsory.

Attendance may be required if the divorce is opposed, you are seeking special orders about service, you have requested to attend or the court directs you to. The court also recommends attending where additional evidence is needed about separation under one roof or changed circumstances.

Divorce hearings are conducted electronically. Check the requirements for your application and any directions from the court rather than assuming that you can choose not to attend. The court’s guidance on divorce hearings.

When the divorce becomes final

A divorce usually becomes final one month and one day after the court grants it, unless the court orders a different period. That period runs from the order being made, not from the date you file your application.

The time from filing to a final divorce will also depend on the available hearing date, service and whether further evidence is needed. Do not assume the divorce will be granted at the first hearing.

You must not remarry until the divorce is final. Check the date on the final order before making arrangements that depend on it. What happens after the divorce hearing.

The time limit for property and spousal maintenance

Once the divorce becomes final, you generally have 12 months to start court proceedings for property settlement or spousal maintenance. This is not a requirement to have the whole case decided within that period.

Continuing negotiations does not, by itself, extend the deadline. If financial matters remain unresolved, take advice well before the 12 months expires about whether an application needs to be filed.

If the deadline has passed, a late application may be possible with both parties’ consent or the court’s permission. Permission is not automatic. Obtain advice before relying on either option. The court’s rules on financial proceedings and time limits.

There is no single required order for resolving divorce, property and parenting matters. What matters is understanding the consequences of the next step. If you are considering divorce and your financial arrangements are unfinished, have the timing checked before applying.

Getting help with your application

PWB Lawyers prepares and files divorce applications, arranges service and represents clients where attendance is needed. We can also advise on the timing of a divorce where property or spousal maintenance remains unresolved.

Contact PWB Lawyers to enquire about an appointment. If you have already filed an application or received divorce documents, have those available along with any hearing date or final order.