Divorce and separation

Considering separation or divorce?

You don't need to be separated or divorced before you get family law advice. Many people find it useful to understand what their options might be, if they do decide to make the decision to separate. We are happy to speak to clients about their situation before they have made a final decision about separation.

Both spouses do not need to be living in Australia for a divorce order to be granted. However, at the time of filing the divorce application, either party, or both, must be:

1. an Australian citizen; or
2. domiciled/residing in Australia; or
3. ordinarily residing in Australia and have been present in Australia for 12 months immediately prior to filing the divorce application.

When to apply for a divorce

To apply for a divorce, you and your former spouse need to have been living separately for at least 12 months, which can include time living separately under the one roof. Importantly, there is no requirement that both parties agree to the divorce.

You can make a sole divorce application, or you and your spouse can apply for a divorce together. When we meet with you, we can advise on the most appropriate application in your circumstances.

Divorce and financial settlements

A divorce order officially terminates a couple's marriage, but it is separate to a financial settlement. The legislation in Australia imposes time limits for filing property proceedings after a divorce order has been granted, so it's important to seek specialist advice before making or responding to a divorce application.

Generally, people file for a divorce after they have resolved any property and parenting issues with their former spouse. This ensures there are no time pressures on applying to the court in relation to financial matters.

If you are already divorced and are yet to finalise a property settlement with your former spouse, we recommend you speak with one of our specialist divorce lawyers as early as possible.

Your property settlement can include the division of your real estate, shareholdings, vehicles, and any corporate entities or trusts. It can be documented in a binding financial agreement or finalised through court orders. This helpful article, “Can my ex-spouse claim money after divorce?” covers the rules, risks and tips to consider to protect your wealth and assets after divorce or separation.

Separating when children are involved

If you have children under the age of 18, your application for divorce must include details about the care and time arrangements for your children. Importantly however, the divorce proceeding itself does not determine your parenting arrangements. We can draft your divorce documents to ensure the details of your parenting arrangements are detailed to the satisfaction of the court, or we can review a divorce application prepared by your spouse or their lawyer.

Our lawyers have extensive experience advising clients as they navigate parenting arrangements with their former partner, including in various forums such as mediation, as well as negotiating appropriate levels of child support for the care of their children.

The divorce process

After you have been separated for 12 months, the process for filing a divorce in Australia is as follows.

1. The divorce documents are filed with the court
2. The divorce documents are served on the other party
3. The divorce hearing - if the court is satisfied all legal and jurisdictional requirements are met, the divorce is granted
4. The divorce order will become final one month and one day after the divorce is granted.

For more information on the family law process in Australia, head to our Family Law Journey Map, which provides a step-by-step guide to resolving your family law issues.

What is the cost of divorce in Australia?

We offer a fixed fee solution for divorce applications, which covers the divorce process from start to finish. We will prepare and file the required court documents, serve them on your spouse and appear at the divorce hearing on your behalf. This provides certainty, ease and transparency for our clients.

Frequently asked questions

How long does a divorce take?

Generally, the process from filing an application for divorce to the granting of a divorce order takes a few months.

This can be longer if there are issues locating and serving the application on the other spouse or if the court is not satisfied that the legal and jurisdictional requirements have been met.

When can I remarry?

In Australia, you cannot remarry until your divorce is finalised. A divorce is finalised one month and one day after the granting of the divorce at the divorce hearing.

What if I've been married for less than two years?

If you would like to apply for a divorce but have been married for less than two years, you must attend counselling to discuss the possibility of reconciling with your spouse. Alternatively, you can seek the permission of the court to apply for a divorce without attending counselling, by filing an affidavit with your divorce application. We can draft the divorce application and supporting affidavit for you.

What is the difference between a divorce and a property settlement?

A property settlement formalises the division of a couple's assets and liabilities. This can be set out in court orders or a financial agreement. A divorce order marks the official dissolution of a couple's marriage.

How do I apply for a divorce?

We can file an application for divorce on your behalf. We offer a fixed pricing solution for this service which may be a more affordable option for you. There are important time considerations in relation to filing an application for divorce that we will discuss with you.