Applying for Divorce in Australia: 12-Month Separation Guide

Applying for divorce in Australia is simpler than many people expect, and it is separate from decisions about children and property. The main legal requirement is that you have been separated for at least 12 months. This guide explains how the 12-month separation rule works, what the process involves, and what to think about alongside a divorce application in NSW.

Australia has no-fault divorce

Under the Family Law Act 1975 (Cth), the only ground for divorce is that the marriage has broken down irretrievably. This is established by showing that you and your spouse have separated and lived separately and apart for at least 12 months and that there is no reasonable likelihood of reconciliation. The court does not ask who was at fault, and you do not need your spouse's agreement to apply.

The 12-month separation requirement

Separation means more than moving out. It means that at least one of you has ended the marriage and acted on that decision, so the relationship is over. The 12 months must be completed before you file your application.

Can you be separated under the same roof?

Yes. Many couples cannot afford to live apart straight away, so the law allows separation while living in the same home. In these cases you may need to show that the relationship ended in practice, for example by sleeping apart, ceasing shared meals and finances, and telling family and friends. You will usually need to provide a supporting affidavit from a third party who knows about the separation. Because the evidence matters, it is sensible to get advice before applying.

What if you tried to reconcile?

A short period of getting back together does not necessarily restart the clock. The Act allows for a brief resumption of living together without resetting the 12 months, and the details can be confirmed by a lawyer.

Who can apply?

You can apply on your own as a sole applicant, or together with your spouse as a joint application. The court has jurisdiction if either of you is an Australian citizen, regards Australia as your permanent home, or has lived in Australia for the 12 months before applying. You must also have a valid marriage that is recognised in Australia.

Married for less than two years

If you have been married for less than two years, you must generally file a certificate showing you have considered reconciliation with a family counsellor, or ask the court for permission to proceed without one.

The divorce process step by step

1. Check eligibility: confirm your separation date and your connection to Australia.
2. Apply online: applications are made through the Commonwealth Courts Portal of the Federal Circuit and Family Court of Australia. You will need your marriage certificate and details of your children, if any.
3. Pay the filing fee or apply for a reduced fee if you hold a concession card or are suffering financial hardship. The fee is set by the Federal Government and changes over time.
4. Serve your spouse if you are a sole applicant. There are specific rules about how and when this must be done. In a joint application, this step is not needed.
5. Attend the hearing if required. Hearings are often held by video link. If you applied jointly and have no children under 18, you generally do not have to attend. A sole applicant with children under 18 usually does.
6. Divorce order takes effect: if granted, the order takes effect one month and one day after it is made. You can then obtain a certificate for your records.

If you have children under 18

The court cannot grant a divorce unless it is satisfied that proper arrangements have been made for the care, welfare and development of children of the marriage. You do not need a formal parenting order. You will be asked to describe the arrangements, such as where the children live and how they are supported. Divorce does not decide parenting arrangements.

Divorce does not settle property

A divorce order ends the marriage legally, but it does not divide your property or deal with spousal maintenance. For married couples, there is generally a 12-month window after the divorce takes effect to apply to the court for property orders. This time limit can be extended only in limited circumstances, so it is wise to seek advice before or soon after you apply for divorce. Many people start the property discussion before the divorce is finalised.

Other practical matters

• Wills and estate planning: review your will and beneficiary nominations, as divorce may affect them in some cases.
• Superannuation and insurance: check nominated beneficiaries.
• Name change: a divorce certificate may help if you wish to revert to a former name.
• Remarriage: you cannot remarry until the divorce takes effect.

Frequently Asked Questions

Can I get a divorce before 12 months of separation?

No. Twelve months' separation is required in every case. If you have been married for less than two years, you must also file a counselling certificate or ask the court for permission to proceed without one.

Does my spouse have to agree to the divorce?

No. You can apply as a sole applicant even if your spouse does not agree. They can respond to the application, but it is difficult to oppose a divorce that meets the legal requirements.

How long does the divorce process take?

It varies with court listings, service and whether a hearing is needed. Once an order is made, it takes effect one month and one day later.

Do I need to sort out property before getting divorced?

No, but you should be aware of the 12-month time limit after the divorce takes effect for married couples. It is often sensible to get advice early.

This article is general information only and is not legal advice. Laws and processes change, and every situation is different. Speak to a lawyer about your circumstances before you act.