Divorce and separation — the 12-month separation requirement and applying to the federal court
Australia has a no-fault divorce system that does not ask who was to blame. We walk you through it step by step: 12 months of separation as the sole requirement, the FCFCOA online application, property settlement and parenting as separate processes, and Child Support.
Australian divorce at a glance — no-fault and the 12-month separation
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).
Key point: divorce and property settlement/parenting are separate processes
A divorce deals only with the legal ending of the marriage. Property settlement, spousal maintenance and parenting arrangements are all separate processes, handled independently at any time before or after the divorce. In particular, applications for property settlement and spousal maintenance must be made within 12 months of the divorce order becoming final — miss the deadline and you can only apply with the court's special permission. Remember: signing the divorce papers does not automatically sort out property matters.
The divorce application process — applying online via the FCFCOA
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.
Sole application vs joint application
A joint application is the simplest: no service on the other party is required, and you generally do not need to attend the hearing even if you have children. A sole application requires you to serve the documents on your spouse (at least 28 days before the hearing if they live in Australia, 42 days if overseas), and you must attend the hearing if there are children under 18. If you cannot expect your spouse's cooperation, simply proceed with a sole application.
- If you apply for divorce less than 2 years after marrying, you must file a counselling certificate or obtain the court's permission
Eligibility and documents to prepare
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)
Four application types by situation
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.
Both spouses agree and apply together. There is no service process and attending the hearing is generally unnecessary, making it the simplest and fastest option. Both parties sign and file the application.
One spouse applies without the other's consent or cooperation. Service of the documents is mandatory, and you must attend the hearing if there are children under 18.
Separation while living in the same home for financial or housing reasons can also be recognised. You must prove things like separate bedrooms, finances and household duties through affidavits from yourself and third parties.
An overseas marriage can be dissolved in Australia if you meet the Australian residence requirements. However, the visa implications for temporary visa holders — such as partner visa applicants — are complex, so consulting an OMARA registered migration agent is essential.
Practical checklist when separating
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
Warnings and common mistakes
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
Useful official links
- FCFCOA — 이혼 신청 (Divorce)(opens in a new window)
Official guidance on applying for divorce — the Federal Circuit and Family Court of Australia page with requirements, fees, online application instructions and forms.
- Services Australia — Child Support(opens in a new window)
Guidance on Child Support assessment, applications and collection options — check the assessment formula and the online application process.
- Family Relationships Online(opens in a new window)
The government's family relationships portal — information on family dispute resolution (FDR), parenting agreements and support services for children after separation.