Applying for Divorce in Victoria: Requirements, Timelines and Next Steps

Nicole Brideson

Law GraduateAitken PartnersView Profile

Constantina Demetriou

Principal LawyerAitken PartnersView Profile

Thinking about applying for a divorce? It's important to understand the divorce process, key waiting periods and the family law time limits that may apply after separation. This guide explains how divorce works in Victoria and what you need to know to protect your interests after divorce.

Divorce in Victoria is governed by the Family Law Act 1975 (Cth) and the only reason needed to obtain a divorce is that there has been an irretrievable breakdown in the marriage. This is due to Australia’s no fault divorce laws. However there are still key requirements which need to be met in order to be eligible to apply for a divorce.

Applying for Divorce

An application for divorce can be made in two ways:

1. A joint Application; or
2. A sole Application.

A joint application is when you and your spouse both wish for the divorce to happen and jointly apply to the court to grant your divorce. This is the fastest way to be granted a divorce as there is no need to serve the application.

A sole application is made by only one party to the marriage. This may take longer as service requirements apply (See: What is service? below).

Requirements

To get a divorce, you must be able to show the court that you and your spouse have lived separately and apart for at least 12 months and 1 day.

Interestingly, you may be able to fulfil this requirement even if you and your spouse have been living under the same roof, this is called ‘separation under one roof’. Contact us to see how we can help you if this is your situation.

You must also be able to provide the court with your marriage certificate. If this is not in English, then a verified translation must accompany it. In lieu of a certificate an affidavit deposing to why the certificate cannot be attached must be provided.

There must also be no intention for you and your spouse to reunite. If you and your spouse have been married for less than two years, then there must be evidence that there has been an attempt to reconcile.

The court may request additional evidence be provided before your divorce is finalised.

Service of Sole Application for Divorce

Once you have filed for divorce, you then have to serve your spouse to notify them officially that the divorce has been filed with the court.

If your spouse is in Australia, then service must occur at least 28-days prior to the hearing.

If your spouse is not in Australia, then service must occur at least 42-days prior to the hearing.

It can be difficult to effect service if the other party does not want to accept service, cannot be found, or does not live in Australia. They may not wish to acknowledge the divorce is happening, or they may just be trying to stall the process, it is important to retain legal advice to discuss what your options are should the other party be avoiding, evading, or unable to receive service of divorce.

Note: What is "service"? If you make a sole application for divorce, the application must be formally provided to your spouse. This is known as service. Service can be completed in a court-approved way, such as by another adult (not yourself) personally giving the documents to your spouse, or by post if your spouse signs and returns an Acknowledgment of Service. The purpose of service is to ensure your spouse is aware of the divorce proceedings and has an opportunity to respond.

Key Timeline and Waiting Periods

The important time limits to keep in mind are:

Divorce

1. You must be separated for at least 12 months and 1 day before applying for divorce;
2. If you file a sole application, service deadlines apply before the hearing;
3. Usually, a divorce becomes final 1 month and 1 day after it has been granted; and
4. You are not able to remarry until your divorce becomes final.

Property Settlements

1. Once the divorce becomes final, an application for Property Settlement must be made within 12 months; and
2. With de facto relationships this timeline extends to 24-months from the date of separation.
3. Compliance with pre-action procedures is required.
4. It would be worth working towards reaching consent over the Property Settlement before the divorce is finalised to ensure it is handled within the time limits.

Formalising a Property Settlement: Once an agreement has been reached, it is important to formalise it. This can generally be done through either a Binding Financial Agreement (BFA) or Consent Orders. A BFA is a private legal agreement that does not require Court approval, while Consent Orders are approved by the Court and become legally binding Court Orders. 

Both options can be used to formalise agreed arrangements regarding property division and, in some circumstances, spousal maintenance, providing certainty about financial matters following divorce.

Parenting Matters

1. There are no timelines on when an application for parenting matters can be made after divorce however, if served with a parenting application, you have 28-days to file a response; and
2. Compliance with pre-action procedures is required.

Note: Parenting Arrangements and Child Support. In Australia, the legal term is parenting arrangements, not child custody. Parenting arrangements cover where children live, how much time they spend with each parent, and important decisions about their care and welfare. Agreed arrangements can be documented in a Parenting Plan. 

Child Support is a separate issue that deals with the financial support of children after separation. While child support is not determined as part of the divorce itself, parents often address it alongside parenting arrangements through Services Australia assessments or private child support agreements. We know these can be delicate and stressful arrangements to make, and we are here to support you through the process to get the best possible outcome.

Summary

Unfortunately, while the divorce can often seem like the easy part from a legal point of view, there are a multitude of factors to be considered, to ensure that the timeline moves as smoothly as possible. Engaging a lawyer is the best way to ensure deadlines are not missed and an already stress process is not made more difficult. 

Our specialised team of family lawyers are here to guide you through the process, and talk you through what your concerns and needs are. We are just a phone call away.

BOOK A CONSULT with our Family Law Team, or call us on +61 3 8600 6000

Read more on our main web pages: Divorce & Separation and Financial Agreements.