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.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

10 year long stop on build­ing defect claims rein­forced for con­tri­bu­tion claims

The recent deci­sion in For­tius Broad­way No 1 Pty Ltd V ACN 103 211 141 Pty Ltd (for­mer­ly known as Wat­pac Con­struc­tion…

A High­er Evi­den­tiary Bur­den for Work Orders: The Prac­ti­cal Impli­ca­tions of The Own­ers – Stra­ta Plan No 102171 v Ceerose Pty Ltd [2025] NSW­CATCD 137

The deci­sion in The Own­ers – Stra­ta Plan No 102171 v Ceerose Pty Ltd; Zone Q Mil­sons Point Devel­op­ment Pty Ltd v Ceerose…

Impor­tant Work­place Rela­tions Changes Effec­tive 1 July 2026

Employ­ers and employ­ees alike should be aware of impor­tant changes in the work­place rela­tions are­na, effec­tive 1 July 2026. From that date:the…

In the News

Roger Corn­forth Retires Fol­low­ing 45 Years of Dis­tin­guished Legal Practice

Roger’s career has been defined by trust­ed rela­tion­ships, prac­ti­cal advice and an unwa­ver­ing com­mit­ment to his clients. Begin­ning his legal…

Protest group los­es appeal to obtain gov­ern­ment documents

The cas­es — Mudgee Region Health Alliance v Min­is­ter for Finance, Domes­tic Man­u­fac­tur­ing and Gov­ern­ment Pro­cure­ment and Nat­ur­al Resources [2026] NSW­CATAD…

Michael Byrnes is quot­ed in the arti­cle, The PM v work­place stan­dards”, pub­lished in HR Leader on 8 July 2026

Michael Byrnes is quot­ed in the arti­cle, ​“The PM v work­place stan­dards”, pub­lished in HR Leader on 8 July 2026To read the…

Sign up for our Newsletter

*Mandatory information