Frequently Asked Questions about divorce

Divorce can be a highly emotional experience for everyone involved, especially if there are children in the picture. For many, an understanding of divorce might come from personal experience as a child. But for others, the only contact comes from movies or TV shows.

While many situations are complicated, having the right information and legal advice makes all the difference. We’ve collated the 10 most frequently asked questions about divorce in the Australian legal system to dispel the most common misconceptions.

How does the system work in Australia?

Australia has a no-fault divorce system. This means the court doesn’t look atwhy the marriage broke downor who is responsible. Instead, the parties only need to show the marriage is “irretrievably broken” and there is no likelihood of getting back together in the future.

Divorce proceedings happen in the Federal Circuit and Family Court. Applications should be filed online using the Commonwealth Courts Portal online form.

How long do we have to be married to apply for divorce?

If you’ve been married for less than two years, you are required to attend counselling first. If there is no scope to work it out beyond this, you must file and sign an affidavit (written statement as evidence) with the application for divorce.

You should seek legal advice when going through this process, as the signature must be witnesses by a Justice of the Peace or a lawyer.

How long do we have to be separated?

The date of separation is a vital part of filing for divorce and can cause problems later in the process if it is not agreed on. You must be separated for a total period of 12 months.  At least one spouse must make a “conscious decision” to end the marriage and communicate it to their partner.

If you don’t agree on the date of separation with your spouse, you should consult a lawyer. This date affects when you can apply for a divorce, when child support becomes payable and ultimately how the court will calculate the length of separation.

The court must be satisfied you have been separated for 12 months before it grants a divorce order.

What if I don’t want to get divorced?

You are not legally required to apply for a divorce after you are separated from your partner, unless you want to get remarried.

However, your spouse can apply for a divorce order without you. If you’ve been separated for more than 12 months and the marriage has broken down, the court will grant a divorce order regardless of whether you agree to it.

Can I apply for a divorce in Australia if I was married overseas?

Yes! But there are criteria. One spouse must be an Australian citizen; or consider Australia their home and intend to live indefinitely; or have been granted Australian citizenship; or ordinarily live in Australia and have lived here for the past 12 months.

What happens with the kids?

The court takes the care and protection of children under 18 extremely seriously. The court needs to be satisfied the arrangements you have made for your children are suitable before they grant a divorce order. You will need to prove how parental responsibility and how the children will be cared for.

When do we deal with our assets including property?

You do not need to wait until you are divorced to start a property settlement. Negotiations can start at any time, but you should get legal advice. Although it is worth pointing out that you only have one year from the date of your divorce to apply for property orders.

I am concerned about my safety. Do I still have to attend the divorce hearing?

If you are at risk of harm or concerned for your safety, contact police, a domestic violence counsellor or a lawyer.

The court can support you on the day of the divorce hearing. If you speak to the staff at least five working days before you are due in court, they can make arrangements for you. This includes the use of a separate entry and exit, allowing you to give evidence by video or audio link and closing the court to the public.

When can I get married again?

The divorce order takes effect one month and one day after it is granted. For example, if your divorce application is granted on 1 March, the order will not come into effect until 2 April. You can marry again as soon as this has happened.

Who can help me with my divorce?

You can find a private lawyer using the Find a Lawyer tool on the Lawfully Explained website.