Divorce

Divorce is the official ending of marriage. When the divorce order is made final you can remarry.

The only requirement for a divorce is the ‘irretrievable breakdown’ of the marriage. This is proved by the husband and wife having been separated for 12 months with no likelihood of getting back together. The court does not consider whose fault it was that the marriage broke down.

To apply for a divorce you or your husband/wife must have been separated for 12 months and fit one of the following:

• be an Australian citizen
• live in Australia and regard Australia as your permanent home
• ordinarily live in Australia and have done so for at least 12 months before the divorce application.

You can apply for a divorce together (joint application) or on your own (sole application) at the Federal Magistrates Court.

Most people apply for a divorce without using a lawyer. You can get an Application for Divorce Kit from the Family Law Courts website(link below).

If you apply on your own you must arrange for the other person to be ‘served’ with the application. Serving or ‘service’ is giving the other person the divorce paperwork so they know about the court proceedings. You cannot personally serve your former partner but you can serve them by mail. There are special rules about serving and forms to prove that the other person was served – see the Family Law Courts website (link below).

You should allow several months from the time you file for divorce to the actual date of divorce. If there are problems with your application it may take longer.

Going to court

If you are making a joint application you do not need to go to court.

If you are making a sole application and your children are under 18 and were part of the family prior to separation, you must go to court unless circumstances stop you from attending.

Children and property

A divorce does not sort out issues relating to children or property. These arrangements must be made separately. However, when hearing your application, the court must be satisfied that proper arrangements have been made for the care and welfare of your children. The court will want to know where children are living and how they are financially supported, as well as information about their health and education and how much time they spend with each parent.

The court can reject a divorce application if it is not satisfied that proper arrangements have been made for the children.

More information

Divorce – frequently asked questions

Dividing your property

Family law and the courts

Getting help

Parenting

Related publications

You and family law: a short guide

Related websites

Family Law Courts – divorce

Family Law Courts – application for divorce kit 

Family Law Courts – service of documents