Divorce — fre­quent­ly asked questions

Am i eli­gi­ble to apply for divorce in australia?

If you want to apply for a divorce in Aus­tralia either you or your spouse need to have some con­nec­tion with Aus­tralia. Usu­al­ly this means that at least one of you:

• regards Aus­tralia as your home and intends to live here indef­i­nite­ly; or
• is an Aus­tralian cit­i­zen; or
• has lived in Aus­tralia for the 12 months imme­di­ate­ly before fil­ing for divorce.

When can I apply for a divorce?

You can apply for a divorce once you have been sep­a­rat­ed from your husband/​wife for a peri­od of at least 12 months. 

What is separation?

Sep­a­ra­tion occurs when one par­ty forms an inten­tion that the mar­riage is over and com­mu­ni­cates that inten­tion to the oth­er par­ty. In cer­tain cir­cum­stances sep­a­ra­tion can take place whilst you are both still liv­ing under the one roof.

What are the grounds for divorce?

There is only one ground for divorce, which is that the mar­riage has bro­ken down irretrievably.

How do I file for Divorce?

You need to com­plete an Appli­ca­tion for Divorce and lodge it at the Fed­er­al Cir­cuit Court of Aus­tralia. The divorce has a fil­ing fee payable direct­ly to the court. You then need to serve a copy of the Appli­ca­tion for Divorce on your husband/​wife.

Whilst the Fam­i­ly Law Courts web­site has a very help­ful ​“do it your­self” divorce kit it may be worth­while retain­ing a lawyer to act on your behalf in con­nec­tion with the divorce pro­ceed­ings as your divorce can have con­se­quences for your prop­er­ty and chil­dren’s proceedings.

Can I oppose an Appli­ca­tion for Divorce?

Yes. If you and your part­ner have not been sep­a­rat­ed for 12 months, or if prop­er arrange­ments have not been made for your chil­dren, you may be able to oppose the Appli­ca­tion for Divorce.

How do I oppose the Divorce?

You will need to file a ​“Response to Appli­ca­tion for Divorce” at the Court and attend the divorce hear­ing. It may be a good idea to obtain spe­cial­ist advice from a lawyer if you wish to oppose the divorce.

What hap­pens to my Will when I divorce?

A divorce can affect the valid­i­ty of your Will. In par­tic­u­lar, if in your Will you have appoint­ed your spouse as your Execu­tor and/​or includ­ed him/​her as a ben­e­fi­cia­ry, those parts of your Will are auto­mat­i­cal­ly revoked on the day your divorce becomes final.

If you are think­ing of get­ting divorced, or have recent­ly been divorced, you should ask a lawyer to review your Will and/​or give thought to mak­ing a new Will. 

When is my divorce final?

When you file your Appli­ca­tion for Divorce you will be giv­en a hear­ing date. If every­thing is in order on the hear­ing date then your divorce will be grant­ed on that day, how­ev­er it will not become final until 1 month and 1 day after the day the divorce is grant­ed. It is only after that date that you will be free to remar­ry if you wish.

Is there any­thing I can do to fast track my divorce?

Yes, in cer­tain cir­cum­stances it is pos­si­ble to apply to the court to fast track your divorce. You should seek spe­cial­ist advice from a lawyer if you wish to do so.