How to Apply for Divorce in Australia

The sole ground and 12 months

Under s 48 the sole ground is irretrievable breakdown, established by 12 months of continuous separation immediately preceding filing, with no reasonable likelihood of resuming cohabitation. The application is filed after the 12-month period has elapsed; together with the one-month period for the order to take effect, parties are ordinarily separated for at least 12 months and one day before the divorce order comes into force. Section 50 permits one resumption of cohabitation of not more than three months to be disregarded (that intervening period is not counted).

Jurisdiction and eligibility

The Court has jurisdiction under s 39 where, at the date of filing, either party is an Australian citizen, is domiciled in Australia, or is ordinarily resident in Australia and has been so resident for one year immediately before that date. Overseas marriage certificates in a language other than English require translation by a qualified translator.

Sole and joint applications

Applications are filed electronically through the Commonwealth Courts Portal. A joint application is filed together and requires only one filing fee; a sole application is filed by one spouse. Applications must be verified in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Service (sole applications)

Service is required for sole applications. Service rules include:

• service by an independent adult, not the applicant, in accordance with the Rules;
• completion within the periods specified in the Rules (with longer periods for overseas service);
• filing of an Affidavit of Service and, where required, an Acknowledgment of Service; and
• where personal service is not possible, application for substituted or dispensed service on the grounds and evidence the Rules require.

Attendance and children under 18

Attendance depends on whether the application is sole or joint, whether there is a child of the marriage under 18, whether an objection is filed and any directions of the Court. Where there is a child of the marriage under 18, the Court must be satisfied under s 55A that proper arrangements have been made for the children, or the divorce order does not take effect. This is a distinct question from parenting orders, which are dealt with under Part VII.

Separation under one roof

Where the parties have separated but continued to live under one roof for some or all of the 12-month period, additional affidavit evidence is required in accordance with current Court guidance. Evidence addresses changes in the relationship (such as sleeping arrangements, division of finances, household duties, social and family communications and any notice given to third parties).

Marriages under two years

Under s 44(1B), where a divorce application is filed less than two years after the date of the marriage, the parties must file a counselling certificate or obtain the leave of the Court. Exceptions apply in the circumstances specified by the section.

Effect of the divorce order

A divorce order takes effect one month after the day it was made, unless the Court orders otherwise. From that date the parties are free to remarry. Time limits under s 44(3) then run for married applications for property and maintenance orders. Effects on wills, super nominations, insurance and estate plans depend on the applicable jurisdiction and instrument. Nullity is a separate proceeding on distinct grounds.

When to obtain advice

Advice should be obtained where separation timing, service, children's arrangements, jurisdiction, an overseas marriage, an intended remarriage or the interaction between divorce, property and estate planning is in issue. See our related guides on parenting arrangements and property settlement.

Frequently Asked Questions