Services

Divorce

Family separation and divorce are stressful events, and it helps to know exactly where you stand.

Obtaining a divorce is a separate legal process to dividing your property, sorting your finances, and deciding the arrangements for your children. A divorce order simply ends your marriage, it doesn’t deal with property settlement, spousal maintenance or parenting arrangements, these are handled separately.

Am I eligible to apply for a divorce?

To apply for a divorce in Australia, you’ll generally need to show:

You and your spouse have been separated for at least 12 months, with no reasonable likelihood of getting back together. This is the only ground for divorce in Australia; you don’t need to prove fault on either side.
You can still be “separated” even if you continued living under the same roof for some or all of that time, for example for financial reasons or for the sake of your children, but you’ll need to provide evidence of this to the Court, and we can help you prepare it.
You or your spouse regard Australia as home and intend to live here indefinitely, are an Australian citizen, or have lived in Australia for at least 12 months immediately before applying

Applying for Divorce

You can apply on your own (a sole application) or together with your former spouse (a joint application):

Sole application – you apply as the “applicant” and must formally serve the application on your former spouse (the “respondent”).
Joint application – you and your former spouse apply together, and formal service isn’t required.

Applications are filed online through the Commonwealth Courts Portal. In most cases you won’t need to attend a Court hearing unless a hearing is specifically requested. Your divorce becomes final one month and one day after your hearing (or after your application is approved, if no hearing is required).

What about the children?

If you have children under 18, the Court needs to be satisfied that proper arrangements have been made for their care, welfare and development before it will finalise your divorce. This doesn’t mean you need final parenting orders in place, but it’s worth turning your mind to living, schooling and financial arrangements for your children early. We can help you put the right arrangements in place, whether informally, through a parenting plan, or through consent orders.

Time limits

Once your divorce becomes final, you generally have only 12 months to make an application to the Court for a division of your property. After that, you’ll need the Court’s permission to proceed, and this isn’t guaranteed. It’s important to get advice about your property and financial position well before this deadline, ideally before you apply for divorce at all, to ensure your interests are protected.

How we can help with more complex situations

Not every divorce is straightforward. We regularly assist clients with more complicated circumstances, including where:

You and your former spouse continued living under the same roof after separating.
You can’t locate your former spouse and need to apply for substituted service, or to have service dispensed with.
Your marriage, or an earlier divorce, took place overseas.
You have questions about parenting arrangements or property settlement alongside your divorce.

Ready to talk it through?

At Empower Family Law & Mediation, we have the knowledge and experience to guide you through your separation and divorce, and to help you understand your options for parenting arrangements and property settlement. Please call us on (03) 7020 6542 to discuss your situation and what we can do for your family.

FAQ’s

Do I need my former spouse's agreement to get a divorce?

No. You can apply on your own even if your former spouse doesn’t agree or doesn’t respond, provided you can show you’ve been separated for 12 months and properly serve them with the application.

How long does a divorce take?

Most straightforward applications take around three to four months from filing to your divorce becoming final, though this can vary depending on the Court registry and whether a hearing is required.

Will I have to go to Court?

In most cases, no. Most applications, including sole applications involving children, are dealt with without a hearing.

What if I don't know where my former spouse is?

We can help you apply for substituted service (for example, by social media or through a relative) or, in some cases, ask the Court to dispense with service altogether.

Does a divorce automatically sort out property or parenting arrangements?

No, a divorce order only ends the marriage. Property settlement, spousal maintenance and parenting arrangements are separate processes, and different time limits apply, so it’s worth getting advice on these at the same time.

Can I get divorced in Australia if I was married overseas?

Generally, yes, provided you meet the residency or citizenship requirements above. We can also assist if your marriage certificate is overseas or not in English.

Speak with us

Your first 30-minute consultation is free. Call (03) 7020 6542 or contact our team to discuss your circumstances and next steps.

Phone: (03) 7020 6542

Email: info@empowerfamilylaw.com.au

Let us be your voice in troubled times.

More Services

Binding Financial Agreements (including Prenuptial Agreements)› Child Relocation› Child Support› Consent Orders› De Facto Relationships› Family Mediation› Family Violence and Intervention Orders› Grandparents and Other Carers› Parenting and Child Custody› Property Settlement› Separation› Spousal Maintenance› Superannuation› Urgent Family Law Issues›

What the Court must be satisfied of

Before a divorce order is made, the Court must be satisfied of each of the following:

You and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life.
You or your spouse are an Australian citizen, regard Australia as home and intend to live here indefinitely, or ordinarily live in Australia and have done so for the 12 months immediately before filing.
A copy of your marriage certificate has been provided to the Court.
One of three declarations can be made about any children of the marriage under 18: that there are none, that satisfactory arrangements are in place for them, or that there is a good reason to grant the divorce even though satisfactory arrangements are not in place.

The documents people most often get caught out by

Your marriage certificate. You must give the Court a copy. If it is not in English, you file an affidavit of translation attaching both the original certificate and the translation. If you cannot obtain an official copy, you must provide evidence that the marriage took place and explain why formal proof is not available. Where you cannot prove you are legally married, a declaration that the marriage is valid may need to be sought first.

Separation under one roof. If you were separated but living at the same address for any part of the 12 months before filing, you will need an affidavit setting out how the marriage changed. You should also ask a third person to file an affidavit corroborating your account. In a joint application, both parties file one.

A change of name. If the name you use now differs from your married or maiden name, you file an affidavit explaining the difference.

What the Court asks about your children

Where there are children of the marriage under 18, the application asks for detail about housing, care arrangements, schooling including grade and progress, care before and after school, health, how the children spend time and communicate with each parent and why not if they do not, and the financial support provided for them. If you cannot give that information, you need to explain why. If what you provide is not sufficient, the Court may adjourn your application until it is.

A "child of the marriage" is broader than most people expect. It includes a child born before the marriage or after separation, a child you and your spouse adopted, and any child treated as a member of your family before final separation, such as a step-child or foster child. It does not matter that the child is not biologically yours.

Filing, fees and where your application is heard

Applications are filed online through the Commonwealth Courts Portal, and you can prepare the application yourself or ask a lawyer to do it for you.

As at 26 October 2026 the filing fee is $1,170, with a reduced fee of $390 for those who qualify, for example holders of a health care card, who must provide evidence of eligibility. On a joint application both parties must be eligible for the reduced fee, otherwise the full fee applies. A separate application can be made for a reduction on the grounds of financial hardship. Court fees change, so confirm the current amount before you file.

Every party must read the brochure Marriage, Families and Separation. If you are applying on your own, you must include it with the documents you serve on your former spouse.

Divorce applications filed in Western Australia are dealt with by the Family Court of Western Australia.

Will you need to attend the hearing?

Every divorce application is listed in court, even when you are not required to attend. You must attend if:

you indicated in the application that you wish to attend
there are children under 18 and the respondent has asked to attend
the respondent files a Response to divorce opposing the application, or
you are asking for an order for substituted service, or to dispense with service.

It is also worth attending where you may need to explain a period of separation under the same roof, or a change in your circumstances since you filed.

If you cannot locate your former spouse

You can give their address as "unknown", but you will then need to file a further application seeking an order for substituted service or to dispense with service, and you should attend that hearing. Orders of this kind turn on showing the Court what steps you took to find them, so keep a record of your attempts, including searches, returned mail and communications.

If you live overseas, or were married overseas

You can still apply in Australia where the eligibility criteria are met. If you are living overseas you must provide an address in Australia for service, which can be the address of a family member or friend willing to pass documents on to you. A marriage that took place overseas is recognised for this purpose where it was solemnised according to the law of that country and a marriage certificate was produced.

After the divorce order is made

A divorce order usually becomes final one month and one day after the hearing, and you must not remarry before it does. The process takes time, and the order is not always granted at the first hearing: if the application is deficient, or the Registrar has questions about part of it, you may be asked to file further evidence and the matter may be adjourned.

A divorce can also carry consequences you may not have turned your mind to, including for your Will. It is worth taking advice on those at the same time as your property and financial position.

The Court information on this page reflects the published guidance of the Federal Circuit and Family Court of Australia on applying for a divorce and divorce generally, as at 26 October 2026. It is general information only, not legal advice, and does not replace advice about your own circumstances.

Am I eligible to apply for a divorce in Australia?

You must satisfy the Court of three things. First, that you and your spouse have lived separately and apart for at least 12 months and one day, with no reasonable likelihood of resuming married life. This is the only ground for divorce in Australia, it is a no-fault system, and the Court does not consider why the marriage ended. Second, that you or your spouse are an Australian citizen, regard Australia as home and intend to live here indefinitely, or have been lawfully living in Australia for at least the 12 months immediately before filing, with evidence such as a passport showing the date of arrival and a current visa. Third, you must give the Court a copy of your marriage certificate. At least one spouse must have regarded the marriage as over at the date of separation and communicated that in some way to the other.

Do we both have to agree before a divorce can be granted?

No. You can apply on your own as a sole applicant, or together as joint applicants, and the same online application is used for both. If you apply on your own, only you sign the application, the other party does not need to consent or sign, and you become responsible for formally serving the application on them. If you apply jointly, both of you sign and no service is required. A spouse who does not want the divorce cannot prevent it simply by refusing to cooperate. They can file a Response to divorce opposing the application, in which case they must attend the hearing to explain why, and you should attend as well: if you do not, the Court may treat their Response as undefended and dismiss your application.

We separated but kept living in the same house. Can we still divorce?

Yes. You can be legally separated while living at the same address, which is known as separation under one roof, and people do it for financial reasons or for the children. Because the usual outward evidence of separation is absent, the Court requires more. You will need to file an affidavit setting out how the marriage changed, which typically covers sleeping arrangements, finances, household tasks, whether you continued to present socially as a couple, and when and how you told the other party and family or friends. You should also ask a third person to file an affidavit corroborating your account, and in a joint application both parties should file one. It is also advisable to attend the hearing where a period under one roof needs explaining.

What does the Court need to know about our children?

Before granting a divorce the Court must make one of three declarations: that there are no children of the marriage under 18, that satisfactory arrangements are in place for them, or that there is a good reason to grant the divorce even though satisfactory arrangements are not in place. The application asks for particulars including housing, care arrangements where a child is not at school, schooling with grade and progress, care before and after school, the health of each child, how much time and communication they have with each parent and why not if they have none, and what financial support is provided. If you cannot give that information you must explain why. Where what you provide is insufficient, the Court may adjourn the application until it is.

Who counts as a child of the marriage?

The definition is broader than most people expect and is not limited to the biological children of both parties. It includes a child born before the marriage or after separation, a child the two of you adopted, and any child who was treated as a member of your family before final separation, such as a step-child or a foster child. If a child lived with you as part of the family, the Court will usually expect their arrangements to be set out in the application even where you are not their biological parent. This matters practically, because an application that omits a child the Court considers a child of the marriage is likely to be adjourned for further information rather than granted on the day.

What does a divorce application cost and how is it filed?

Applications are eFiled through the Commonwealth Courts Portal, and you can prepare the application yourself or ask a lawyer to do it for you. You will need access to a scanner, a printer and a credit or debit card. As at 26 October 2026 the filing fee is $1,170, with a reduced fee of $390 for those who qualify, for example holders of a health care card, who must provide evidence such as a copy of both sides of the card. On a joint application both parties must be eligible for the reduced fee or the full fee applies. A separate application can be made for a reduction on financial hardship grounds. Court fees are set by regulation and are reviewed regularly, so confirm the current amount before filing rather than relying on a figure quoted previously.

Will I have to attend the divorce hearing?

Every divorce application is listed in court, but attendance is only required in specific circumstances: where you indicated in the application that you wish to attend, where there are children under 18 and the respondent has asked to attend, where the respondent files a Response to divorce opposing the application, or where you are seeking an order for substituted service or to dispense with service because you cannot find your spouse. It is also worth attending where you may need to explain a period of separation under the same roof, or a change in circumstances since you filed, because the Registrar may have questions that are easier to answer in person. Divorce hearings are conducted electronically, and you can indicate in the application that you wish to attend even where you are not required to.

When does the divorce take effect, and when can I remarry?

A divorce order usually becomes final one month and one day after the hearing, unless the Court makes a special order shortening that period, and you must not remarry until it is final. The process takes time and the order is not always granted at the first hearing: if the application is deficient, or the Registrar has questions about part of it, you may be asked to file further evidence and the matter may be adjourned. You can elect through the Commonwealth Courts Portal to receive an email notification when the divorce is granted, and the order becomes available to download the next working day after it takes effect. The divorce order carries an electronic seal and signature and is the only official record the Court issues.

Does the divorce sort out our property and finances?

No. A divorce order ends the marriage and nothing else. Property settlement, spousal maintenance and arrangements for children are separate processes, dealt with either by agreement or by separate court orders, and you can resolve all of them without ever applying for a divorce. The divorce does, however, start a clock: once it is final you have 12 months to apply to the Court for property or maintenance orders. After that you need the Court's permission to proceed, which is not always granted. For that reason it is usually better to take advice on your property position before applying for a divorce rather than afterwards. It is also worth getting advice on other consequences of a divorce, including the effect on your Will.