Family Law

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Can I apply for divorce?

To apply for divorce in Australia, you must meet the following 4 requirements:

The marriage has irretrievably broken down
You have been married for at least 2 years (What happens if my marriage is less than 2 years?)
You have separated for at least 12 months and 1 day
Family Law

Do I need to get consent for divorce?

Joint application Sole application
Signature Apply together with your spouse Apply by yourself
Hearing No need to attend hearing Only need to attend hearing if you have children under 18. (What if I cannot attend divorce hearing?)
Service No need to serve documents You must ensure the divorce application papers are served on your spouse
Legal Fee Fixed fee with 20% discount at Ascent Lawyers Fixed fee

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Frequently Asked Questions

To apply for divorce in Australia, you or your spouse must answer yes to one of the following:

  1. Regard Australia as home and intend to live in Australia indefinitely
  2. Are an Australian citizen
  3. Ordinarily live in Australia and have lived here for at least 12 months before filing your divorce application

Yes, you can. If you are married for less than 2 years, you and your spouse are required to attend counselling in order to obtain a counselling certificate.

If you are unable to attend these sessions, you will need to write an affidavit to the court before you can apply for a divorce.

Not necessarily. It is possible for you and your spouse to be separated but to continue living in the same house during the 12 months before applying for divorce. This is known as‘separation under the one roof’.

If you have separated with your spouse under one roof during part or all of the required 12 months separation period, you need to provide an affidavit to support your divorce application.

In your affidavit, you need to prove that there has been a change in the marriage. You need to explain:

  • changes in sleeping arrangements
  • reduction in shared activities or family outings
  • decline in performing household chores for each other
  • division of finances
  • any other matters showing the marriage has broken down

If you are applying for a divorce on your own, you must file an affidavit yourself. You should also file an affidavit by an independent person.

If you and your spouse are applying together you must each file a separate affidavit. If only one of you is able to file an affidavit, then you should file an affidavit by an independent person.

Note – An independent person can be a family member, friend or neighbour. The affidavit by the independent person should contain as much information as they know about the separation.

If you cannot locate your spouse, you may apply for a sole divorce application.

Normally you would need your spouse’s address to serve the divorce papers. In such circumstances, you have to prove that you have taken all reasonable steps to locate them but failed. You will need to make a further application to ask a court to dispense with service or for substituted service.

After the divorce application is submitted, a court hearing date will be allocated in a few months’ time.

On the day of the court hearing, if the judge is satisfied that all the requirements are met in the divorce application, a divorce order will be granted and become effective after 1 month and 1 day.

If you have been separated for more than 12 months, there are a few opportunities to oppose a divorce application. You can only oppose the divorce if:

  • there has not been 12 months separation as alleged in the application, or
  • the Court does not have jurisdiction

If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out why you want the court to dismiss the divorce application.

It does not matter if you were married overseas. You can get divorced in Australia if you or your spouse satisfies the residency requirement.

When you file your Application for Divorce, you must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file an English translation of it, and an affidavit from the translator.

When you file your Application for Divorce, you must provide the Court with a copy of your marriage certificate.

If you do not have a copy of your marriage certificate, you should try to locate or obtain a copy from the relevant authority in Australia or overseas where the marriage took place. If you are unable to obtain a copy of your marriage certificate, you must file an affidavit from the translator affidavit with the Court explaining why you are unable to provide a copy of the marriage certificate.

Yes, you can.

If you were married, you must apply to the Family Court for Property Settlement and/or Spousal Maintenance within 12 months of your divorce becoming final.

If you were in a de facto relationship, you must apply to the Family Court for a property settlement and or spousal maintenance within 2 years of the date you separated from your ex partner.

We understand that this can be a very stressful time in your life. Our family lawyers are trained and equipped to provide you with constructive guidance. We highly recommend meeting with one of our family lawyers based in Brisbane for at least a one-off consultation. You will be gaining practical advice to help you navigate your way through this stressful time.

When you are dealing with a complicated Family Law matter such as divorce or property settlement, seeking legal guidance is the only viable option.

Please note that when the court grants a divorce, it does not solve issues about property or children. If you want to make arrangements about these issues, you need to engage a lawyer to help you with:

If you want to apply for spousal maintenance or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.

Contact experienced family lawyers at Ascent Lawyers to work alongside you throughout this trying time. Let us be your worry-free legal solution.

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