My spouse and I have separated, how do I get a Divorce?
Divorce is the legal process of ending a marriage. It is an important legal process, which can be emotionally challenging.
Am I eligible to apply for divorce in Australia?
In Australia, you no longer need to provide a reason for divorce. No fault-divorce in Australia was introduced in 1975, with the passing into law of the Family Law Act 1975. Until then, a party needed to prove that the other party was responsible for the breakdown of the marriage. Accepted grounds for divorce included ‘habitual drunkenness’, ‘adultery’, or ‘cruelty’.
Thankfully, now you do not need to explain to the Court why your marriage broke down. Instead, the Court will only need to be satisfied about the following:
- That your marriage has irretrievably broken down. That is, that you have been separated from your spouse for at least 12 months. Sometimes people are separated and live in the same house.
- In addition, you must also meet any of the following criteria:
a. Be an Australian citizen; orb. live in Australia and consider it to be your permanent home; orc. normally live in Australia and have lived here for at least 12 months before applying for divorce.
Importantly, you do not need to have been married in Australia to be eligible to apply for divorce.
Does my spouse need to apply jointly, or can I apply myself?
If you and your spouse agree, you can file a joint application for divorce. If you cannot agree (or you do not know their whereabouts) you will need to file the divorce application on your own.
After you file your application, your spouse needs to receive a sealed copy of your divorce application. This must be done either in person or by post. You cannot serve the application yourself. Generally, you would engage another adult person, such as a family member, or friend, or engage a professional process server to serve your spouse.
If you do not know the whereabouts of your spouse, or they are evading service, you will need to apply for either substituted or dispensation of service. This is a separate application filed with the Court. The Court can make various orders so that your spouse is aware of your application.
Do I need to go to Court?
If you and your spouse make a joint divorce application, you will not need to attend a Divorce Hearing. You will need to go to Court if you are doing a sole application for divorce and you and your spouse have children under the age of 18 years.
After a change in legislation on 10 June 2025, you will not need to attend a Divorce Hearing even if you and your spouse have children under the age of 18. These amendments are designed to lessen the burden on parties who separating but still ensuring that the best interests of the children are upheld.
Is Divorce the same as a Property Settlement?
Divorce and property settlement are two distinct legal processes. People often confuse divorce with property settlement. A divorce is the legal ending of a marriage. It does not deal with the assets or liabilities of a marriage. A property settlement deals with dividing the assets between parties.
Time Limits in Property Settlements
Once your divorce is made final, you have 12 months to initiate property settlement proceedings, otherwise you will be deemed to be out of time and will need to either get the consent of the other party to apply for a property division, or you must apply to the Court for special leave. If your time limit is soon to expire, it is important that you obtain legal advice as to your entitlements and obligations as soon as possible.
When is my Divorce finalised?
After the Court makes the Divorce Order, your divorce will automatically become final after one calendar month and one day has passed. Until then, you are still legally married.
If you have any questions about divorce, or would like assistance you’re your application or service on your spouse, please contact one of our friendly, experienced Family Law solicitors by email or by telephone on (08) 8359 3444.