How to Apply for Divorce in Australia: Step-by-Step Guide

Step 1: Confirm 12 months' separation

Australia has a single, no-fault ground for divorce. Under section 48 the marriage must have broken down irretrievably, which is established if and only if the Court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately before the application was filed. The order must not be made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

The requirement is tested at the date of filing: an application filed before the full 12 months has run is defective, and a later hearing date does not cure it. Fix the separation date you rely on before starting the online form. Separation does not require both parties to agree (section 49(1)); it can occur under one roof (section 49(2)), although additional affidavit evidence is then required (Step 4); and one short reconciliation may be disregarded under section 50. Identifying the separation date, separation under one roof, short reconciliations and the evidence the Court expects are covered in our companion guide to divorce and the 12-month separation requirement. This article assumes it is satisfied and concentrates on the mechanics of applying.

Step 2: Check jurisdiction and gather proof of the marriage

Under section 39(3), proceedings for a divorce order may be instituted if, 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 the preceding 12 months. Only one party needs to satisfy one alternative, and it does not matter where the marriage took place. Divorce proceedings are commenced in the Federal Circuit and Family Court of Australia (Division 2), not Division 1; in Western Australia they are filed in the Family Court of Western Australia. An applicant living overseas must give an address for service in Australia.

A copy of the marriage certificate must be filed. If it is not in English, an English translation must be filed with an Affidavit – Translation of Marriage Certificate completed by the translator. If an Australian certificate cannot be located, obtain a copy from the relevant Registry of Births, Deaths and Marriages; for an overseas marriage, an affidavit must explain why the certificate cannot be provided and give details of the ceremony. Where both parties were born overseas, additional evidence of jurisdiction is needed — proof of citizenship or, for a party relying on ordinary residence, evidence of 12 months' residence such as a Visa Entitlement Verification Online (VEVO) check.

Step 3: Choose a sole or joint application

Section 44(1A) permits the application to be made by either party to the marriage or by both jointly. The same online form is used; the choice is made at the first question.

• Joint application. Both spouses are applicants and both sign. A joint application is not served, and both parties may indicate that they do not wish to attend the hearing.
• Sole application. The spouse who files is the applicant and the other is the respondent. Only the applicant signs, and the application must then be served (Step 6). The respondent may acknowledge service, ask to attend the hearing or file a Response to Divorce.

A joint application is the simpler course where the parties can cooperate; a sole application is used where the other spouse will not join in, cannot be located, or should not be approached.

Step 4: Prepare the documents and the filing fee

Which documents are required depends on the answers given in the application. They may include:

• the Application for Divorce, completed online;
• the marriage certificate, with a translation affidavit where needed, or the affidavit described in Step 2;
• the Affidavit for eFiling Application (Divorce), signed by the applicant, or by both joint applicants, before a lawyer or Justice of the Peace at the time of filing; if joint applicants cannot sign the same affidavit, two may be uploaded;
• affidavits about separation under one roof, where the parties lived in the same home for any part of the 12 months before filing. A sole applicant must file their own affidavit and should ordinarily also provide an affidavit from an independent person — a family member, friend or neighbour — corroborating the separation. In a joint application both applicants should file affidavits; if only one joint applicant is able to do so, an independent person's affidavit should also be filed. The Court's fact sheet Separated but living under one roof sets out what the affidavits should address;
• evidence of jurisdiction where both parties were born overseas (Step 2);
• particulars of any child of the marriage under 18, entered in Part F — housing, care arrangements, schooling, health, contact with each parent and financial support;
• the Marriage, Families and Separation brochure, which all parties must read and which is served with a sole application.

A filing fee set by regulation is payable on submission. A reduced fee is available to holders of certain concession cards and to applicants who demonstrate financial hardship; in a joint application both parties must be eligible. Current amounts and the reduction guidelines are on the Court's family law fees page.

Step 5: File through the Commonwealth Courts Portal

Applications are eFiled through the Commonwealth Courts Portal, which also gives access to the court file, the hearing details and, in due course, the divorce order. In outline:

1. Register on the Portal and start a new file; divorce is dealt with separately from any parenting or property proceedings.
2. Select Application for divorce, complete Parts A to F and check every answer in print preview — the application cannot be changed once locked.
3. Upload the documents required by your answers.
4. Lock and print the application, have the Affidavit for eFiling Application (Divorce) signed and witnessed, and upload it.
5. Submit, pay the fee (or apply for a reduced fee), and select the registry and hearing date. Under the practice direction the hearing must be at least 42 days after filing if the respondent is in Australia, or at least 56 days if overseas. Every application is listed for hearing, whether or not anyone is required to attend.

The Court checks that the documents are complete and will contact the applicant if anything needs rectifying; whether the ground is established is decided at the hearing. Further documents, such as an affidavit of service, are eFiled to the same file.

Step 6: Serve the application (sole applications only)

A joint application is not served. In a sole application the applicant must serve the respondent in accordance with Division 2.6.4 of the Family Law Rules, and the order will not be made until service is proved.

What to serve. The sealed Application for Divorce with the Notice of Application for Divorce, the sealed Affidavit for eFiling, the brochure, an Acknowledgment of Service (Divorce) and any other filed documents other than identity documents and fee-reduction material. For service by post, include a pre-addressed, stamped envelope for return of the Acknowledgment.

How and when to serve. Rule 2.42 permits personal service by another person over 18, or prepaid post to the respondent's last known address; the applicant cannot serve the respondent personally. Service by post depends on the respondent signing and returning the Acknowledgment; if it is not returned, service by hand will be needed. A lawyer instructed in writing to accept service may be served instead. Service must be effected at least 28 days before the hearing if the respondent is in Australia, or at least 42 days if overseas; under rule 2.41, a document posted by airmail overseas is taken to be served on the 28th day after posting.

Proving service. Before the hearing the applicant files an Affidavit of Service by Post (Divorce), annexing the signed Acknowledgment, or an Affidavit of Service by Hand (Divorce) sworn by the server. Where the server did not know the respondent, further evidence of identity is required, such as an Affidavit Proving Signature (Divorce).

Respondent overseas or cannot be found. Service in New Zealand is governed by the Trans-Tasman Proceedings Act 2010 (Cth); elsewhere rule 2.49 applies and, in a Hague Service Convention country, Part 10 of the Family Law Regulations 2024. Overseas service can be slow and warrants advice before the hearing date is chosen. If the respondent cannot be served despite all reasonable steps, the applicant may apply without notice under rule 2.34, by an Application in a Proceeding with an affidavit of the attempts made, for substituted service (by email, text message, social media or through a third person, for example) or, in exceptional cases, for an order dispensing with service, which requires substantial evidence that the respondent cannot be located.

If you have been served

A respondent who receives a sealed application should sign and return the Acknowledgment of Service. Acknowledging service confirms receipt; it is not agreement that the divorce should be granted. A respondent who accepts the facts in the application need do nothing more and is not required to attend.

A respondent who wishes to attend the hearing may request to do so by email to the Court, copied to the applicant, no later than seven days before the hearing. A respondent who wishes to oppose the order, or to correct something in the application, must file a Response to Divorce within 28 days after service in Australia, or 42 days after service overseas, and serve it on the applicant. Because divorce is no-fault, a Response contesting the divorce goes to whether the 12 months had elapsed at filing or whether the Court has jurisdiction, not to whether the respondent wants the marriage to continue.

Step 7: The hearing

Divorce hearings are conducted by a Judicial Registrar or Deputy Registrar. Under the practice direction most divorce hearings occur in the absence of the parties: a sole application may be determined without anyone present where no Response to Divorce has been filed and neither party has requested to attend, and a joint application where both parties have indicated that they do not wish to attend. Neither a sole application nor a child under 18 requires attendance by itself.

Requested attendance. Either party may choose to attend — the applicant by indicating that wish in the application, the respondent by emailing the Court — and one party's election does not oblige the other. Where only the respondent requests attendance, the Registry notifies both parties of the hearing details and the applicant may attend but is not required to. The Court's guidance is that attending is advisable where additional affidavit material has been filed, such as a period under one roof, because the Registrar may have questions.

Required attendance. Under the practice direction attendance, in person or by a lawyer, is required where:

• a Response to Divorce contests the divorce or raises an issue about the Court's jurisdiction or power, in which case the hearing proceeds in open court and each party must attend or be represented (a Response that does neither does not trigger this requirement);
• an Application in a Proceeding for substituted service or dispensation of service is listed, unless the Registrar excuses attendance; or
• the Court has directed a party to attend.

Required appearances before a Registrar are generally conducted electronically. If a party who is required to attend does not do so, the other party may proceed as if the application or Response were undefended; if neither attends, it may be struck out or dismissed. Where the Registrar needs further evidence about service, separation or the children, the application is adjourned with directions, and if the divorce is not granted the Court notifies the applicant of the reasons.

Children under 18 and section 55A

Section 55A is a condition on when the order takes effect, not on whether it is made. A divorce order does not take effect unless the Court has declared that it is satisfied that there are no children of the marriage under 18, or that proper arrangements in all the circumstances have been made for the care, welfare and development of the children specified in the order, or that there are circumstances by reason of which the order should take effect even though the Court is not so satisfied. Where the Court doubts whether the arrangements are proper it may adjourn for a family consultant's report (section 55A(2)). The Part F particulars are ordinarily the evidence for the declaration.

"Child of the marriage" is wider than a child born to both spouses. Under section 55A(3) it includes a child of either party born outside the marriage, an adopted child, and a child of neither party — a step-child, for example — who was treated by both parties as a child of their family immediately before their separation.

The declaration is not a parenting order. The divorce proceeding does not decide where children live, whom they spend time with or how decisions are made about them; those matters are dealt with under Part VII by agreement, parenting plan or parenting orders — see our guide to parenting arrangements after separation. Child support is assessed under separate legislation and is unaffected by the divorce; see child support assessments and agreements.

When the order takes effect and proof of divorce

Under section 55(1), a divorce order takes effect at the expiration of one month from the making of the order, or from the making of an order under section 55A, whichever is later. The Court describes this as finalisation one month and one day after the hearing: an order made on 17 March is finalised on 18 April and can be downloaded from the Portal from 19 April. The Court may extend the period having regard to the possibility of an appeal, or reduce it in special circumstances (section 55(2)). Until the order takes effect it may be rescinded on the joint application of parties who have reconciled (section 57); once it has taken effect, no appeal lies from it (section 60).

The order downloaded from the Portal is free and is the proof of the divorce. Under section 56 the Registry Manager may also issue a certificate that the order has taken effect, which is prima facie evidence of that fact in all courts.

What a divorce does not resolve

The divorce order changes the parties' legal status and nothing else. Four matters need separate attention.

Property and spousal maintenance. Under section 44(3), property settlement or spousal maintenance proceedings between married parties must be instituted within 12 months after the divorce order takes effect; after that, only with the leave of the court or the consent of both parties, and neither should be assumed. The conditions attached to leave and consent are explained in our guide to time limits for property settlement; on the substantive law, see property settlement after separation and spousal maintenance.

Existing orders and agreements. Parenting orders, financial orders, child support assessments and binding financial agreements made before the divorce are not discharged by it and continue to operate according to their terms.

Wills and estate planning. In Victoria, divorce affects gifts to, and appointments of, a former spouse under a will, whereas separation on its own generally does not. A will, any enduring power of attorney and any superannuation death benefit nomination should be reviewed promptly after separation; see our guide to making a will in Victoria.

Remarriage. A party must not marry again until the order has taken effect (section 59); a wedding should not be fixed by reference to an expected date.

Common procedural problems

Each of the following will prevent the order being made at the first hearing:

• filing before the full 12 months has run;
• a separation date inconsistent with the affidavit material or other documents;
• names that do not match the marriage certificate, without evidence of the change;
• a period under one roof disclosed without the supporting affidavits;
• both parties born overseas and no evidence of citizenship or residence uploaded;
• in a sole application, an Acknowledgment of Service never returned, or an affidavit of service not filed before the hearing;
• a hearing date that does not allow the minimum service period, particularly for a respondent overseas;
• incomplete Part F particulars, leaving the Registrar unable to make the section 55A declaration.

When to obtain legal advice

The application is designed to be completed without a lawyer; Court staff can assist with forms and process but cannot give legal advice. Advice is warranted where the separation date may be contested or the 12 months is finely balanced; where the parties lived under one roof; where the respondent cannot be located, is overseas or has a legal incapacity; where the marriage certificate cannot be produced or both parties were born overseas; where there are children under 18 and the arrangements are unsettled; and, in every case, where the 12-month period for property and maintenance proceedings is approaching. Where family violence is a factor, see our guide to family violence intervention orders in Victoria; for the wider context, see our complete guide to family law for separating couples.

Frequently asked questions

Sources and further reading

Primary and official sources, current at the date of review; Court pages are published by the Federal Circuit and Family Court of Australia. Court procedure changes from time to time; check the Court's website before filing.

• Family Law Act 1975 (Cth) — Federal Register of Legislation (Part VI, including sections 39, 44, 48–50, 55, 55A and 56–60).
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 — Federal Register of Legislation (Part 2.6, including rules 2.34, 2.35 and 2.41–2.49).
• Family Law Practice Direction: Divorce proceedings (FAM-DIVORCE)
• Divorce overview
• How do I apply for divorce?
• Serving a divorce (sole applications only)
• Divorce hearing
• Separated but living under one roof — Federal Circuit and Family Court of Australia fact sheet.
• Family law fees