Life in Australia Guide

Divorce in Australia is a no-fault system under the Family Law Act 1975. The court does not consider whose fault the marriage breakdown was; the only ground for divorce is that the marriage has 'broken down irretrievably', proven by at least 12 months of separation. In other words, you do not need to prove fault such as infidelity or incompatibility — the fact of 12 months' separation is the requirement itself. If there was a temporary reconciliation of less than 3 months during the separation, the periods of separation before and after can be added together (the reconciliation period itself is excluded).

Divorce applications are made to the FCFCOA (Federal Circuit and Family Court of Australia) and are filed online through the Commonwealth Courts Portal. You can choose between a joint application filed by both spouses together and a sole application filed by one spouse alone — either way, the requirement is the same 12 months of separation.

To apply for a divorce, at least one spouse must meet one of the following: be an Australian citizen, live in Australia and regard it as home, or have ordinarily lived in Australia for at least 12 months immediately before applying. This means temporary visa holders without citizenship or permanent residency can also divorce in Australia if they meet the residence requirement, and the same applies to marriages that took place overseas.

• Marriage certificate — if not in English, submit an English translation together with an affidavit from the translator
• Evidence supporting the fact and start date of the separation — a lease at a separate address, Centrelink records, statements from people who know you, etc. (an affidavit is required for separation under one roof)
• Proof of identity and residence — citizenship certificate, visa, passport, residence records and other evidence of the jurisdictional requirements

Even for the same divorce, what you need to prepare differs depending on the application type and your situation. Find the type that matches your circumstances.

Once you separate, there are many practical matters to sort out alongside the court process. Work through the following items in order.

• Report the change in your relationship to Centrelink (within 14 days of the change) — you will move to the single rate and payments such as Family Tax Benefit will be recalculated
• Sort out joint accounts and credit cards — check your ex-partner's withdrawal access and, if needed, open an account in your own name and change where your salary is paid
• Sort out the lease and utility accounts — negotiate a lease transfer or termination with the landlord or agent, and separate the names on electricity, internet and other accounts
• Review your will and superannuation beneficiary nominations — these do not change automatically on separation or divorce, so you need to update them yourself
• If you have children, negotiate a parenting plan — use family dispute resolution (FDR) if needed, and convert it into consent orders if you need it to be legally binding

The biggest losses come not from the process itself but from misunderstandings about time limits and legal effect. Avoid the mistakes below.

• Missing the 12-month time limit after the divorce becomes final — applications for property settlement and spousal maintenance must in principle be made within 12 months of the divorce order becoming final; after that, you need the court's special permission
• Believing a parenting plan is legally enforceable — a parenting plan is only a written agreement; if you need enforceability, you must obtain consent orders or parenting orders
• Counting the 12 months without evidence of the separation start date — disputes over the start date will delay the process. A temporary reconciliation of less than 3 months can be added to the separation period, but that too needs to be documented
• Setting a remarriage date before the divorce order is final — a divorce only becomes final 1 month and 1 day after the hearing, and you cannot remarry before then
• As a temporary visa holder, failing to notify Home Affairs of the relationship change or deciding on your own — always consult an OMARA registered migration agent, and if there was family violence, check the family violence provisions section of our family violence support guide