Divorce in Australia works through a federal legal system governed by the Family Law Act 1975 (Cth), which requires only one legal ground: the irretrievable breakdown of marriage. To prove this, separating couples must complete at least 12 months of continuous separation with no reasonable likelihood of reconciliation.
Divorce applications are lodged with the Federal Circuit and Family Court of Australia (FCFCOA), processed either jointly or by one spouse alone, and finalised one month and one day after the Court grants the order. Importantly, divorce only ends the marriage — it does not resolve property division, parenting arrangements, or spousal maintenance, which must be handled through separate legal processes and strict timeframes.
Jurisdiction and Legislative Authority
All divorce applications are dealt with by the Federal Circuit and Family Court of Australia (FCFCOA) in accordance with Part VI of the Family Law Act. Requests for dissolution of marriage are formal legal proceedings, requiring:
- Jurisdictional eligibility (citizenship, domicile, or habitual residence)
- Evidence of separation
- Compliance with procedural rules, including service of documents where required
The Court must be satisfied that statutory grounds are met before granting relief
Eligibility Requirements for Divorce
To apply for divorce, parties must establish:
- At least 12 months and one day of separation
- Evidence that reconciliation is unlikely
- Proper arrangements in place for children under 18 (as required under s 55A)
Separation under one roof may be accepted but must be supported by corroborating affidavit material.
Importantly, divorce may proceed despite objection from the other spouse, provided eligibility criteria are established.
The Divorce Application Process
The divorce process comprises three principal steps:
- Filing of the divorce application through the Commonwealth Courts Portal, either jointly or solely.
- Service of the application where a sole application is made (procedural compliance under FCFCOA Rules 2021).
- Court determination and issuance of a divorce order, which becomes final one month and one day after granting.
Failure to properly serve documents or incomplete affidavits can result in adjournment or dismissal.
Parenting Considerations
Where children under 18 are involved, the Court must be satisfied that appropriate arrangements exist regarding:
- Care and living arrangements
- Parental responsibility and decision-making
- Financial support obligations (through Services Australia or private agreement)
While divorce itself does not determine parenting matters, inadequate arrangements may delay the granting of the divorce order.
Parenting disputes are heard under Part VII of the Family Law Act 1975 (Cth), entirely separate from dissolution proceedings.
Financial and Property Matters Are Separate Legal Processes
A common misconception is that divorce automatically divides assets. It does not. Financial and property rights arise under Part VIII (married couples) or Part VIIIAB (de facto couples).
Key principles include:
- Property interest alteration requires a judicial finding of just and equitable necessity (s 79(2))
- Contributions assessed (financial and non-financial)
- Future needs factors under s 75(2) may justify percentage adjustments
Applications for property settlement or spousal maintenance must be filed within 12 months of the divorce becoming final, absent leave of the Court.
Sole vs Joint Divorce Applications
Before starting the application process, separating couples must decide whether the divorce will be filed jointly or by one party alone. This choice affects the required paperwork, service rules, timeframes, and the overall complexity of the proceedings. Understanding the differences ensures the correct procedural path is followed from the outset.
Joint Application
- Both spouses file the divorce application together.
- Fewer disputes over procedural steps and service requirements.
- Lower risk of delays since both parties cooperate.
- Typically more cost-effective and streamlined.
Sole Application
- One spouse applies without the other’s participation.
- The applicant must personally serve court documents on the other party.
- Additional procedural steps may apply if the spouse’s location is unknown.
- The Court may require proof that the respondent is aware of the application.
Duration of Divorce Proceedings
Indicative timeframe:
- Minimum 12-month separation period (pre-application)
- Processing: ordinarily 8–16 weeks depending on service and hearings
- Finalisation: one month + one day after Court pronouncement
Urgency is possible only in exceptional circumstances and rarely granted.
Court Fees and Costs
Fees include:
- Divorce filing fee
- Service fees (for sole applications)
- Legal representation costs for complex matters
Fee reduction may be granted to concession-eligible applicants.
Procedural errors may significantly increase costs, underscoring the value of early legal guidance.
Do You Need a Lawyer?
While straightforward cases may be self-managed, legal representation is strongly recommended where matters include:
- Significant asset pool
- Parenting disputes
- Superannuation splitting
- Family violence
- Contested service or jurisdictional issues
Practitioners ensure compliance with statutory rules, proper evidence filing, and protection of entitlements. For those unsure where to begin, finding a good family lawyer early helps avoid costly mistakes and strengthens outcomes across both parenting and financial matters.
Through LegalFinda, individuals can locate an experienced family lawyer qualified to advise on divorce, parenting matters, and financial settlements.
Frequently Asked Questions
Even with clear legislative rules and a structured court process, separating couples often have practical concerns about eligibility, timing, and what divorce actually changes under the Family Law Act 1975 (Cth). The FAQs below address the most common questions asked by individuals navigating divorce in Australia.
What is the legal ground for divorce in Australia?
Irretrievable breakdown of marriage, evidenced by 12 months of separation, under s 48.
Does adultery matter in Australian divorce?
No. Misconduct does not affect the Court’s power to dissolve the marriage, though it may impact related matters such as parenting in limited cases.
Can the divorce be opposed?
Only on procedural or jurisdictional grounds. Disagreement with the separation itself is not a legal basis to refuse divorce.
Does divorce determine property division?
No. Divorce is separate from asset settlement. Financial matters require separate proceedings under Part VIII.
When is a hearing required?
Where there are children under 18 in a sole application, or where service or evidence is contested.
Conclusion
Divorce in Australia is a formal legal process requiring strict compliance with federal legislation. While dissolving the marriage itself is generally straightforward, the broader legal consequences — including financial adjustment, asset distribution, and parenting arrangements — require careful planning and professional advice.
Securing representation from a qualified family lawyer, such as those available through LegalFinda, ensures your rights are preserved at every procedural stage and that all post-divorce obligations are managed strategically with regard to long-term financial and personal wellbeing.
