How to Divorce in Australia – the Legal123 guide. Bear in mind, every divorce is different – some are easy, some are difficult and drawn out. This guide covers the whole process of divorce in Australia and most frequently asked questions.
If you and your ex-partner remain civil and cooperate you’ll be able to get through the divorce process quickly and skip most of the steps below. However, if your divorce becomes acrimonious it will take you much longer and cost more. Acrimonious divorces end up using the Court system to reach agreement, lawyers to intermediate and take more time because more of the steps explained below need to be completed.
Divorce steps and FAQs covered in this guide
Click on any of the links below to jump to that section of this legal guide.
- Step 1: You separate
- Step 2: Agree how to split your financial assets
- What is a Separation Agreement?
- What are the advantages of a Separation Agreement?
- Does a Separation Agreement need to be lodged with a court?
- What is the difference between a Separation Agreement and a Court Order?
- What is the difference between a Separation Agreement and Pre-nuptial Agreement?
- Can Separation Agreements apply to defacto and gay relationships?
- What about splitting superannuation?
- What about spousal maintenance?
- Can the Separation Agreement be changed after the divorce?
- What if we can’t agree a financial settlement?
- What is a Separation Agreement?
- Step 3: Agree how to care and pay for your children
- Step 4: Apply for a divorce and dissolve your marriage
If after reading this guide you still have a question, get in touch as we’d love to keep adding your questions to this comprehensive guide.
Step 1: You separate
You and your partner agree to separate and get a divorce. Or one partner may just leave the relationship and tell the other they want a divorce. In either case, you might want to send an email or a letter to them confirming your intentions, just in case the date of your separation is later contested in Court.
In 1975 the law changed in Australia and now all divorces are ‘no fault’ – effectively you and your ex-partner agree that you have irreconcilable differences and have decided to separate. ‘Fault’ such as adultery, cruelty, etc. are no longer relevant.
In most cases one partner will leave the marital home. However, if you can’t afford to live in separate accommodation, or you choose to continue to live in the same premises for other reasons, you can ‘separate under one roof’ and still share the same living space.
But you must now live separate lives – sleep in separate beds, cook your own meals, etc. When it comes to applying for your divorce you, your ex-partner and a friend or family member will need to sign affidavits (with some supporting facts) stating that you and your ex-partner were in fact ‘separated under one roof’.
Is there anything I should do straight away?
Yes. The end of a relationship is a traumatic time – for anyone – but you need to look after yourself. And part of that process is to sort out a few simple financial matters. They may not seem important now, but down the track they could prove invaluable.
Here’s a list of things to do as soon as possible:
- Make a list of all your assets and debts – split them between those in your name, your partner’s name and in joint names.
- Block your joint bank accounts and credit cards – just in case your partner does something without your approval and you’re left unable to pay rent, etc.
- Ensure your salary and any other income goes into an account only you can access.
- Make sure you’re not the only one paying the mortgage, car payment or utility bills.
- Get copies of tax returns, credit card statements, investment accounts, utility bills, bank statements, insurance policies, super accounts, etc.
- Update your Will – and if you don’t have one write a Will immediately.
- Lastly, see what you can afford and set a budget – it may help decide whether you can buy your partner out of a property or whether you can afford a new one.
And the list above applies equally to men and women who are separating.
What if you’ve been married less than 1 year?
If you have been married for less than 1 year when you decide to separate, you and your ex-partner must attend counselling. This is a requirement of Australian law and shows that you have at least considered and attempted to reconcile. The counsellor will then give you a Counselling Certificate to show that you have attended counselling.
If there are special circumstances that make mediation impossible or inappropriate, you need to advise the Court and ask that this requirement be dropped. You can research more information on finding a counsellor here.
If I was not married in Australia, can I still get divorced here?
Yes, you can apply for a divorce in Australia under these 3 circumstances:
- Either you are or your spouse is an Australian citizen
- You have lived in Australia for the past 12 months, or
- You regard Australia as your home country and intend to live here permanently.
When are two partners considered separated?
You do not necessarily have to be ‘physically’ separated to be considered legally separated. You may still be living in the same house as your partner but considered ‘separated’ for the purposes of the law. Even if it is only one person who is instigating the act of separation, you may still be considered to be legally ‘separated’ even if you do not want or ask for it.
Step 2: Agree how to split your financial assets
As soon as you decide to separate, you and your ex-partner can start discussing and agreeing how to divide your financial assets, liabilities and any ongoing financial commitments (excluding child support, this is covered later).
A financial settlement can usually be agreed within weeks if your relationship with your ex-partner is amicable. However, if your relationship is not amicable, and you need to use the Court process to divide your financial assets and ongoing commitments, the process could take 2 or 3 years. The longer it takes and the more lawyers are involved, the less that will be left for you, your ex-partner and any children.
The financial settlement that you come to is formalised in what is called a Separation Agreement. This document is legally binding and remains private between both parties.
However, if you anticipate potential problems down the road, you can apply to the Court to issue what is called a Court Order. Bear in mind, if you choose to do this, the Court decides your financial asset split – and it may not be what you want. They also require you to show evidence that you attempted settlement (through a Separation Agreement), may require you to attend mediation and your agreement will become part of public record.
You may apply to the Court for a Court Order any time after you have separated, up to 12 months after your divorce is finalised. This process is separate from the divorce application process.
What is a Separation Agreement?
A Separation Agreement states how two former partners have agreed to split their financial assets (and any ongoing financial obligations) once they decide to separate. A Separation Agreement is agreed between the two former partners without the intervention of the courts or any divorce proceedings. It can be entered into and agreed anytime after the partners separate and even before applying for a divorce.
Separation Agreements are also known as Financial Separation Agreements or Property Settlement Agreements.
What are the advantages of a Separation Agreement?
There are a number of advantages to a Separation Agreement:
- Save on stamp duty and CGT on transfer of property
- No court intervention or approval required
- No need to lodge with a court
- Mutually agreed between former partners
- More amicable and less stressful
- Quicker resolution
- Saves on expensive or lengthy litigation, and
- Saves on solicitor negotiation costs
Does a Separation Agreement need to be lodged with a court?
No, your Separation Agreement does not have to be lodged with a local court.
However, if your separation is not amicable you can always use the courts to review and approve financial and parenting arrangements. Courts can determine settlements and issue Court Orders. They can also review and approve mutually agreed arrangements through issuing what are called Consent Orders. These are a “half-way-house” that fill the gap between Separation Agreements and Court Orders.
Remember, your Separation Agreement becomes public when lodged with a court.
What is the difference between a Separation Agreement and a Court Order?
A Court Order is made by a family court after reviewing the circumstances of a Divorce Application. The decision on how to split financial assets and ongoing financial obligations is determined by the court and ordered to be followed by the two parties getting divorced.
By contrast, a Separation Agreement is mutually agreed between the two parties, without court involvement. In this way, it is usually a much more amicable agreement, equally entered into by the two parties. Typically this avoids expensive litigation, acrimonious legal wranglings and a property settlement dictated by a third party. For these reasons, Separation Agreements are preferable to Court Orders.
What is the difference between a Separation Agreement and Pre-nuptial Agreement?
A Pre-nuptial agreement is written before getting married and determines how financial assets will be split if the marriage fails. This type of agreement is often entered into when one partner has substantially more financial assets than the other and does not want to risk losing them in the event of divorce.
A Separation Agreement is written after a marriage/relationship has come to an end and lays out how the financial assets are agreed to be split.
Can Separation Agreements apply to defacto and gay relationships?
Yes, except in Western Australia.
Gay relationships and same sex marriages are considered defacto relationships in most Australian States, except Western Australia. In this State the legislation on recognition of defacto and gay relationships is behind the rest of Australia. For that reason, Separation Agreements may not be considered valid and it is worth checking locally with family assistance or legal aid groups.
The following factors are considered when determining whether a relationship is defacto:
- Length and duration of the relationship
- Whether any children are involved
- Financial dependence and sharing of finances
- Common residence and living arrangements
- Public acknowledgment of the relationship, etc.
What about splitting superannuation?
Splitting superannuation savings between partners can sometimes become difficult, for example, if the assets are large and in one partner’s name. In such circumstances a separate Binding Superannuation Agreement should be entered into by both partners. This is a separate agreement which should be attached to your Separation Agreement.
However, if the superannuation savings are in separate names and split fairly between partners then a separate agreement is not necessary. Instead the asset split can be specified as part of your normal Separation Agreement. More information here.
What about spousal maintenance?
As part of your financial settlement you may agree to pay or be paid spousal maintenance – sometimes called alimony. This is a monthly amount paid from one partner to another to cover their costs of living if they are unable to financially support themselves. Spousal maintenance is not an automatic right, the partner asking for it needs to prove they are unable to work, for example, because they are physically or mentally unable to do so.
Spousal maintenance is not intended to cover the costs of raising children, this is covered by your Child Support Agreement and is discussed below. If you choose to pay or be paid spousal maintenance then a separate Spouse Maintenance Agreement is required, which should be attached to your Separation Agreement.
More information on spousal maintenance here.
Can the Separation Agreement be changed after the divorce?
Yes, the financial aspects of the Separation Agreement can be changed at any time if you and your spouse agree. However, you only have a window of 12 months of the divorce becoming final to contest any financial aspects of the agreement.
What if we can’t agree a financial settlement?
If you cannot agree your financial settlement, you still need a Separation Agreement and then you can apply to the Court for a determination, called a Court Order. The Court often requires you to attempt mediation first, using the Family Dispute Resolution Service.
If a mediated settlement cannot be reached then one partner will have to initiate the Court process and propose their financial settlement request to the other partner. This involves first requesting and disclosing various financial documentation, for example, tax returns, bank statements, company BAS statements, property valuations, etc to the other partner. Then an application form stating the desired financial settlement is filed (with a fee) by the partner initiating the process with the Court.
The Court then issues a court date, usually for a month later, and sends details of the proposed financial settlement to the other partner. The other partner must then respond. If they agree the financial settlement, the Court registers it and issues a Consent Order making it legally binding.
If, however, the other partner declines the proposed financial settlement then they must make a written counter offer. If this in turn is not accepted, the process starts to escalate. On the appointed court date, an authorised member of the Court will attempt to negotiate a settlement. If none can be reached then a date is set for a Conciliation Conference between both partners.
If this also fails to reach a settlement then a Pre-Trial Conference is held between both partners. Finally, if this fails too, the case goes to trial where a judge will make the final determination and issue Final Orders. Your Separation Agreement, once decided through the Court process, will also become part of public record. Obviously this is a time consuming and expensive process that is best avoided if possible.
Note: Legal Aid will not provide you with a lawyer to help you with your financial settlement.
Step 3: Agree how to care and pay for your children
Obviously, if you don’t have children (under 18 years) then you can skip this section.
Just like financial matters, you and your ex-partner can start discussing and agreeing how to continue raising any children (under 18) of your marriage as soon as you separate. This includes who the children will live with, how much contact the parents will have and what child support payments will be made.
Your agreement is formalised in two documents: a Parenting Plan that covers how the children will be cared for and a Child Support Agreement that agrees how the costs of raising your children will be met.
These documents can be re-negotiated and changed over time with both parents’ agreement. Strictly speaking you do not need a formal Parenting Plan but it is in your children’s best interests to have an agreement written down. A Child Support Agreement, however, is compulsory.
Under Australian law, parents have equal rights (and obligations) in caring for their children. For older children this usually means a ‘week-about’ arrangement where children spend one week with one parent and then the next week with the other parent. For younger children this usually means they live with their mother and spend every second weekend with their father.
Parenting Plans do not need to be registered with the Court, but if you have applied for Court Orders, which means registering your financial Separation Agreement, you can attach the Parenting Plan to this and have the two documents registered at the same time. The Court then issues what is called a Consent Order. Of course any changes to a registered Parenting Plan would also have to be registered with the Court.
More information on Parenting Plans here.
What about child support payments?
Australian legislation sets out guidelines for determining how much child support should be paid. If you choose to follow these legislated guidelines then you need to make a Limited Child Support Agreement. You then file an application form with the Department of Human Services who review and approve your agreement.
More information on the Child Support Formula here.
If you choose not to follow the legislated guidelines for child support payments, for example you’d prefer to make a lump sum payment than monthly payments, then you need to make a Binding Child Support Agreement. This requires a formal assessment by the Department of Human Services with independent legal advice.
Child Support Agreements need to be registered with the Court. You can lodge this Agreement on its own at any time or, if you chose to go through the Court process for your financial separation, it may form part of your Separation Agreement. The Court will then issue what is called a Consent Order. Of course any changes to the agreement would also have to be registered with the Court.
What if we can’t agree how to care or pay for the children?
If you cannot agree parenting arrangements or payments for the care of your children, the first step is to attempt mediation using the Family Dispute Resolution Service. If there are special circumstances that make mediation impossible or inappropriate, you need to advise the Court and ask for alternative arrangements to be made.
More information on dispute resolution here.
If a mediated settlement cannot be reached then the process starts to escalate and ultimately the issues will be determined by the Court. This will likely involve your lawyers, the mediator as well as your attendance at Court. An application form (with a fee) will need to be filed with the Court and a court date will set.
This will be an expensive and drawn out process and you are best to try to settle your dispute with mediation, as the Courts do not look favourably on disputes involving children. They prefer you look beyond your personal issues and provide what is best for your children.
Note: You can apply for Legal Aid and the help of a lawyer when going through the Court system for resolving issues to do with children. Alternatively you can hire your own lawyer or represent yourself.
Step 4: Apply for a divorce and dissolve your marriage
You need to be separated from your ex-partner for a year before applying for a divorce. The law allows for you to get back together for up to 3 months before having to start counting the 12 months from scratch.
For example, if you separate for 4 months then decide to try living together again but then decide before 3 months that it is not going to work, then you must wait another 8 months before applying for a divorce. In this way the 12 month requirement is satisfied (but you do not start the 12 month period again from the beginning if you do not stay together for 3 months or more).
You apply for a divorce by completing an Application for Divorce form and filing it with the Court. The application can be completed and filed either jointly or solely (by either the husband or wife). Once the application form is completed you need to have it signed by a Justice of the Peace, lawyer or similar authorised person. Then the application form plus 2 copies, marriage certificate, any supporting documents and fee need to be filed with the Family Law Registry in your state or territory.
They will stamp the application, give you a file number and date and time for a court hearing, usually in 2-4 months time. If you have filed your Application for Divorce individually (as a sole application), you will need to ‘serve’ the documents and hearing date on your ex-partner. You only need attend the hearing if you filed your application solely and have children (under 18), otherwise neither partner has to attend the hearing.
At the hearing, the Court grants the divorce and issues a Final Order. This takes legal effect one month and one day after being issued. The Court then sends a Certificate of Divorce to both partners – and your marriage has been dissolved.
How do I apply for a divorce?
You can apply for a divorce by completing and then lodging a Divorce Application form with the Family Law Court (or Federal Magistrate’s Court) of Australia. This process may be done online and both Courts use the same Divorce Application form.
Lodging the Divorce Application with the Family Court of Australia involves a fee of $550 (as at December 2010). Reduced application fees are usually available to people who are experiencing hardship.
What is required to have a Divorce Application approved?
You and your spouse need to have:
- Agreed how to split your financial assets and obligations with a Separation Agreement (strictly speaking this is not a court requirement but is highly recommended)
- Agreed custody of any minor (under 18) children
- Not lived together (or have lived together but separately) for at least 12 months, and
- No likelihood of a reconciliation or returning to your marriage
Splitting financial assets and ongoing financial obligations (for example, paying school fees for any children) can be agreed during the 12 months prior to lodging a Divorce Application. Then these arrangements are documented in a Separation Agreement. If agreement can’t be reached after mediation, the Family Law Court will make a determination prior to granting a divorce.
What if I can’t contact my spouse?
If you can show you have taken reasonable steps to contact or serve your divorce application on your spouse unsuccessfully, then you can apply to the Court for “Substituted Service”. This means you can send the divorce application to a relative or friend of your spouse whom you have reason to believe will give it to them.
If this fails or is not possible, then you can apply to the Court for “Dispensation of Service”. This means you have tried everything reasonably possible to locate your spouse but cannot locate an address or other contact details for them.
What if I don’t want to get divorced?
There is very little you can do to oppose a divorce application, with really only 2 reasons you can oppose:
- Show that you have not been separated for 12 months, or
- Prove that the Court does not have jurisdiction to grant your divorce (for example, you and your spouse do not live in Australia and do not have Australian citizenship).
If you do want to oppose the divorce, you need to file what is called a “Response to Divorce” within 28 days of receiving the divorce application from your spouse. You will need to attend the divorce hearing on the notified date – if you do not attend, the Court will decide the matter without you.
We hope you found this feature article on How to Divorce in Australia helpful.