Divorce in Australia: What You Need to Know
Family Law: 07 April 2026
Author: Abbey Hoolahan - Our People
Divorce is often misunderstood as a process that resolves all aspects of the breakdown of a marriage. In reality, divorce is a separate legal step with specific eligibility requirements and important implications for property and parenting matters.
What does the divorce process involve?
As set out in the Family Law Act 1975 (Cth) (the Act), divorce is defined as “the termination of a marriage otherwise than by death of a party to the marriage.
One common misconception a lot of people have about divorce is that this process itself finalises your property and financial, and parenting matters.
In reality, the divorce process runs separately, save for there being overlap with respect to your limitation period for your property matters, and what information, including about children under the age of 18 years, that you are required to tell the Court.
Who is eligible to apply for a divorce?
To be eligible for a divorce application:
- either spouse (at the time of filing) must have an Australian citizenship or domicile or been ordinarily resident in Australia for the past year;
- the marriage has broken down irretrievably;
- the parties have been separated and lived separately for a continuous period of not less than 12 months and 1 day; and
4. the Court is satisfied that there is no reasonable likelihood of cohabitation being resumed.
Separated but living under one roof?
This eligibility can become quite blurry, especially in cases where parties are separated but living under one roof.
If this situation applies to you, you can still make an application for a divorce, however you must establish by evidence that you remain separated. Please be wary that in these situations, increased fees can be associated, because you will need to file affidavits in support from your family members or close friends to support your separation.
What does it mean to be separated?
Under section 49(2) of the Act, parties to a marriage can still be held to be separated, even if they have continued living in the same residence.
For instance, in the case of Pavey v Pavey [1976], “Separation means more than physical separation. Separation can only occur in the sense used by the Act where on or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed…” This can be summarised as “intention and action.”
When making this assessment, “[the Court will consider] elements such as [whether the parties are] dwelling under the same roof, [having] sexual intercourse, [their] mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage...”
Recent case example
In the recent case of Bertrand [2025] FedFamC2F 1121 (31 July 2025), Judge O’Shannessy heard a contested divorce application. The main issue in contention was whether the parties had in fact separated in March 2023, despite continuing to engage in consensual sexual relations and subsequently becoming pregnant. In this case, the Court made it clear that “no one aspect of separation or physical separation is a determining factor.”
In addition, the Court stated, “I am not satisfied that [the Applicant Husband’s] participation in sexual activity with [the Respondent Wife] on the occasions that they had sex, of itself, meant that there was a reconciliation of the personal relationship between the parties…”.
In mind of the evidence before the Court, it conclude that, “…As at the date of [the Applicant Husband] filing his divorce application, I am satisfied that the ground for a divorce had been made out. Notwithstanding the joy of the sexual relationship between the parties from time to time, I am not satisfied that they have resumed cohabitation.”
How do I apply for divorce?
If you and your former spouse mutually agree to apply for a divorce, together you can seek what is called a joint application. This process makes things a lot easier, as it dispenses the service requirements.
When filing your Divorce Application, a copy of your marriage certificate must be filed at the same time.
Alternatively, if you wish to make the application on your own, you can make a sole application for Divorce. Although only you will be required to sign this application, this imposes strict service requirements on your former spouse.
Service Requirements
In relation to the service requirements under the Federal Circuit and Family Court of Australia Rules, service for divorce application cannot be effected on your former spouse must take place by via post or by hand (process server) pursuant to the personal service requirements.
When your former spouse or their respective lawyer is served, they are issued with what is called an “Acknowledgment of Service form,” which confirms that they have been served.
If your former spouse refuses to acknowledge the service, the service provider can file an Affidavit of Service documenting what attempts were made to effect the same.
When can I remarry?
Your divorce will come into effect 1 month and 1 day after the order being made, or after a section 55A declaration is made (whichever is the later).
This means that if you are considering remarrying, you must wait until this order has taken effect.
Strict limitation period
An important takeaway to note is that if you are considering making a divorce application, you must be cautious of the limitation period that section 44 of the Family Law Act 1975 imposes on you in respect of your property matters.
This means from the date your divorce order is made, you will have a period of 12 months to bring an application for certain maintenance and property proceedings.
If this 12-month period lapses, in order to apply for maintenance and property proceedings, you will then be required to seek leave by the court, or consent of your former spouse.
Children under 18
When there are children under the age of 18 years, the Court must be satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of those children or there are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that such arrangements have taken place.
For example, if the Court is not satisfied that appropriate arrangements have been made for the child or children, they may adjourn the proceedings until a family report has been obtained.
Marriage counselling requirements
On 10 June 2025, new amendments were inserted into the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules) that in effect remove the requirement for a party to attend marriage counselling and file a certificate if they were married within two years of the date of filing for divorce.
This not only simplifies the mediation process but protects individuals who may be in relationships where they are exposed to family violence and counselling is not appropriate.
Do I have to attend a hearing?
If attendance is required, Divorce hearings generally take place via telephone.
How much is the filing fee?
To make a Divorce Application the current filing fee has increased from 1 July 2025 to $1,125, noting that GST does not apply to court fees. Refer to the Annual federal courts and tribunals fee increases from 1 July 2025 confirming the same.
If you are someone you know needs assisting in applying for a divorce application, please do not hesitate to contact our office on 03 8600 6000.
For more information please refer to the How to Apply for Divorce Factsheet - FCFCOA.