While ‘separation’ and ‘divorce’ are often used interchangeably, they mean different things. Divorce means ending a marriage legally. Granting a divorce does not determine the other issues of separation, such as financial support, property distribution or arrangements for children. It simply recognises that the marriage has ended.
You don’t have to get a divorce if you and your spouse separate unless you want to marry someone else. But staying married might affect your rights and responsibilities. You should talk to a lawyer if you are unsure what to do.
Am I eligible for divorce?
To get a divorce, you need to show that you and your spouse have been separated for at least 12 months and there’s no reasonable chance that you’ll get back together. The legal term for this is that your marriage has ‘irretrievably broken down’.
It’s possible to separate and still live together in the same home and this time can count to your 12 months. It’s important that you establish your date of separation.
You can apply for a divorce in Australia if either you or your spouse:
- regard Australia as your home and intend to live in Australia indefinitely, or
- are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
If you got married in another country, you can still get a divorce in Australia if you meet the above conditions.
If you’ve been married for less than two years, you need to go to counselling with your spouse and get a certificate from the counsellor. Or you need to get permission from the court to apply for a divorce without the certificate.
What is the Court process for divorcing?
You can apply for a divorce by yourself or together with your spouse. You need to apply to the Federal Circuit and Family Court of Australia. Many file divorce applications online using the Commonwealth Courts Portal online form.
If you live in Western Australia, you’ll need apply to the Family Court of Western Australia.
Most people don’t need to attend a court hearing, but you might need to in some circumstances, such as whether your application is joint or sole and whether you have children under 18.
There are fees for applying for a divorce, but you might be able to pay less or nothing if you have financial difficulties.
What about parenting and property?
Applying for a divorce won’t cover the other legal considerations of separation. You need to agree with your spouse on these matters separately, and most people seek professional advice and support to do this. You don’t need to wait for 12 months to agree and settle your parenting and property matters.
If you have children under 18, a court can only grant a divorce if it is satisfied that you’ve made proper arrangements for their care.
If you finalise your divorce before you settle financial or property matters, you’ll have 12 months after your divorce to do so.
Who can help me with my divorce?
If you’d like advice about parenting and property or support with your divorce application, the legally qualified mediators and family lawyers in our network can talk you through your next steps.
The professionals in our network have signed our Ethical Charter and believe in de-escalation and court as a last resort.
The Separation Guide aims to make separation and divorce simpler, more manageable and less stressful. To find out more about how one of our Network Members could support your separation, take our free 3-minute Q&A.
The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.