How to Divorce in Australia – the Legal123 guide. Bear in mind, every divorce is different – some are easy, some are difficult and drawn out. This guide covers the whole process of divorce in Australia and the most frequently asked questions.
If you and your ex-partner remain civil and cooperate, you’ll be able to get through the divorce process quickly and skip most of the steps below. However, if your divorce becomes acrimonious, it will take you much longer and cost more. Acrimonious divorces end up using the Court system to reach an agreement, and lawyers to intermediate and take more time because more of the steps explained below must be completed.
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You and your partner agree to separate and get a divorce. Or one partner may leave the relationship and tell the other they want a divorce. In either case, you might want to send an email or a letter to them confirming your intentions, just in case the date of your separation is later contested in Court.
In 1975 the law changed in Australia and now all divorces are ‘no fault’ – effectively you and your ex-partner agree that you have irreconcilable differences and have decided to separate. ‘Fault’ such as adultery, cruelty, etc. are no longer relevant.
In most cases, one partner will leave the marital home. However, if you can’t afford to live in separate accommodation, or you choose to continue to live in the same premises for other reasons, you can ‘separate under one roof’ and still share the same living space.
But you must now live separate lives – sleep in separate beds, cook your own meals, etc. When it comes to applying for your divorce you, your ex-partner and a friend or family member will need to sign affidavits (with some supporting facts) stating that you and your ex-partner were in fact ‘separated under one roof’.
Yes. The end of a relationship is a traumatic time – for anyone – but you need to look after yourself. And part of that process is to sort out a few simple financial matters. They may not seem important now, but down the track, they could prove invaluable.
Here’s a list of things to do as soon as possible:
And the list above applies equally to men and women who are separating.
If you have been married for less than 1 year when you decide to separate, you and your ex-partner must attend counselling. This is a requirement of Australian law and shows that you have at least considered and attempted to reconcile. The counsellor will then give you a Counselling Certificate to show you have attended counselling.
If there are exceptional circumstances that make mediation impossible or inappropriate, you need to advise the Court and ask that this requirement be dropped. You can research more information on finding a counsellor.
Yes, you can apply for a divorce in Australia under these 3 circumstances:
You do not necessarily have to be ‘physically’ separated to be considered legally separated. You may still be living in the same house as your partner but are considered ‘separated’ for the purposes of the law. Even if it is only one person who is instigating the act of separation, you may still be considered to be legally ‘separated’ even if you do not want or ask for it.
As soon as you decide to separate, you and your ex-partner can start discussing and agreeing on how to divide your financial assets, liabilities and any ongoing financial commitments (excluding child support, which is covered later).
A financial settlement can usually be agreed upon within weeks if your relationship with your ex-partner is amicable. However, if your relationship is not amicable, and you need to use the Court process to divide your financial assets and ongoing commitments, the process could take 2 or 3 years. The longer it takes and the more lawyers are involved, the less that will be left for you, your ex-partner and any children.
The financial settlement that you come to is formalised in what is called a Separation Agreement. This document is legally binding and remains private between both parties.
However, if you anticipate potential problems down the road, you can apply to the Court to issue what is called a Court Order. Bear in mind, if you choose to do this, the Court decides your financial asset split – and it may not be what you want. They also require you to show evidence that you attempted settlement (through a Separation Agreement), may require you to attend mediation and your agreement will become part of the public record.
You may apply to the Court for a Court Order any time after separation, up to 12 months after your divorce is finalised. This process is separate from the divorce application process.
A Separation Agreement states how two former partners have agreed to split their financial assets (and any ongoing financial obligations) once they separate. A Separation Agreement is agreed between the two former partners without the intervention of the courts or any divorce proceedings. It can be entered into and agreed upon anytime after the partners separate and even before applying for a divorce.
Separation Agreements are also known as Financial Separation Agreements or Property Settlement Agreements.
There are several advantages to a Separation Agreement:
No, your Separation Agreement does not have to be lodged with a local court.
However, if your separation is not amicable, you can always use the courts to review and approve financial and parenting arrangements. Courts can determine settlements and issue Court Orders. They can also review and approve mutually agreed arrangements by issuing Consent Orders. These are a “half-way-house” that fills the gap between Separation Agreements and Court Orders.
Remember, your Separation Agreement becomes public when lodged with a court.
A family court makes a Court Order after reviewing the circumstances of a Divorce Application. The decision on how to split financial assets and ongoing financial obligations is determined by the court and ordered to be followed by the two parties getting divorced.
By contrast, a Separation Agreement is mutually agreed upon between the two parties without court involvement. In this way, it is usually a much more amicable agreement, equally entered into by the two parties. Typically this avoids expensive litigation, acrimonious legal wranglings and a property settlement dictated by a third party. For these reasons, Separation Agreements are preferable to Court Orders.
A Prenuptial agreement (or prenup) is written before getting married and determines how financial assets will be split if the marriage fails. This type of agreement is often entered into when one partner has substantially more financial assets than the other and does not want to risk losing them in the event of divorce.
A Separation Agreement is written after a marriage/relationship has ended and lays out how the financial assets are agreed to be split.
Yes, except in Western Australia.
Gay relationships and same-sex marriages are considered defacto relationships in most Australian States, except Western Australia. In this State, the legislation on recognition of defacto and gay relationships is behind the rest of Australia. For that reason, Separation Agreements may not be considered valid and it is worth checking locally with family assistance or legal aid groups.
The following factors are considered when determining whether a relationship is a defacto:
Splitting superannuation savings between partners can sometimes become difficult, for example, if the assets are significant and in one partner’s name. In such circumstances, a separate Binding Superannuation Agreement should be entered into by both partners. This is a separate agreement that should be attached to your Separation Agreement.
However, if the superannuation savings are in separate names and split fairly between partners then a separate agreement is unnecessary. Instead, the asset split can be specified as part of your normal Separation Agreement. More information here.
As part of your financial settlement, you may agree to pay or be paid spousal maintenance – sometimes called alimony. This is a monthly amount paid from one partner to another to cover their costs of living if they are unable to support themselves financially. Spousal maintenance is not an automatic right. The partner asking for it needs to prove they cannot work, for example, because they are physically or mentally unable to do so.
Spousal maintenance is not intended to cover the costs of raising children. This is covered by your Child Support Agreement and is discussed below. If you choose to pay or be paid spousal maintenance then a separate Spouse Maintenance Agreement is required, which should be attached to your Separation Agreement.
More information on spousal maintenance here.
Yes, the financial aspects of the Separation Agreement can be changed at any time if you and your spouse agree. However, you only have a window of 12 months of the divorce becoming final to contest any financial aspects of the agreement.
If you cannot agree to your financial settlement, you still need a Separation Agreement and then you can apply to the Court for a determination, called a Court Order. The Court often requires you to attempt mediation first, using the Family Dispute Resolution Service.
If a mediated settlement cannot be reached, then one partner will have to initiate the Court process and propose their financial settlement request to the other partner. This involves first requesting and disclosing various financial documentation, for example, tax returns, bank statements, company BAS statements, property valuations, etc to the other partner. Then an application form stating the desired financial settlement is filed (with a fee) by the partner initiating the process with the Court.
The Court then issues a court date, usually a month later, and sends details of the proposed financial settlement to the other partner. The other partner must then respond. If they agree on the financial settlement, the Court registers it and issues a Consent Order making it legally binding.
If, however, the other partner declines the proposed financial settlement then they must make a written counteroffer. If this in turn is not accepted, the process starts to escalate. On the appointed court date, an authorised member of the Court will attempt to negotiate a settlement. If none can be reached then a date is set for a Conciliation Conference between both partners.
If this also fails to reach a settlement then a Pre-Trial Conference is held between both partners. Finally, if this fails too, the case goes to trial where a judge will make the final determination and issue Final Orders. Your Separation Agreement once decided through the Court process, will also become part of the public record. This is a time-consuming and expensive process that is best avoided if possible.
Note: Legal Aid will not provide you with a lawyer to help you with your financial settlement.
If you don’t have children (under 18 years) then you can skip this section.
Like financial matters, you and your ex-partner can start discussing and agreeing on how to continue raising any children (under 18) of your marriage as soon as you separate. This includes who the children will live with, how much contact the parents will have and what child support payments will be made.
Your agreement is formalised in two documents: a Parenting Plan that covers how the children will be cared for and a Child Support Agreement that agrees on how the costs of raising your children will be met.
These documents can be re-negotiated and changed over time with both parents agreement. Strictly speaking, you do not need a formal Parenting Plan but it is in your children’s best interests to have an agreement written down. A Child Support Agreement, however, is compulsory.
Under Australian law, parents have equal rights (and obligations) in caring for their children. For older children, this usually means a ‘week-about’ arrangement where children spend one week with one parent and then the next week with the other parent. For younger children, this usually means they live with their mother and spend every second weekend with their father.
Parenting Plans do not need to be registered with the Court. Still, if you have applied for Court Orders, which means registering your financial Separation Agreement, you can attach the Parenting Plan to this and have the two documents registered simultaneously. The Court then issues what is called a Consent Order. Of course, any changes to a registered Parenting Plan would also have to be registered with the Court.
More information on Parenting Plans here.
Australian legislation sets out guidelines for determining how much child support should be paid. If you choose to follow these legislated guidelines, then you need to make a Limited Child Support Agreement. You then file an application form with the Department of Human Services which reviews and approves your agreement.
More information on the Child Support Formula here.
If you choose not to follow the legislated guidelines for child support payments, for example, you’d prefer to make a lump sum payment than monthly payments, then you need to make a Binding Child Support Agreement. This requires a formal assessment by the Department of Human Services with independent legal advice.
Child Support Agreements need to be registered with the Court. You can lodge this Agreement on its own at any time or if you choose to go through the Court process for your financial separation, it may form part of your Separation Agreement. The Court will then issue what is called a Consent Order. Of course, any changes to the agreement would also have to be registered with the Court.
If you cannot agree on parenting arrangements or payments for the care of your children, the first step is to attempt mediation using the Family Dispute Resolution Service. If there are exceptional circumstances that make mediation impossible or inappropriate, you need to advise the Court and ask for alternative arrangements to be made.
You can read more information on dispute resolution.
If a mediated settlement cannot be reached, then the process starts to escalate and ultimately the issues will be determined by the Court. This will likely involve your lawyers, the mediator as well as your attendance at Court. An application form (with a fee) will need to be filed with the Court and a court date will be set.
This will be an expensive and drawn-out process and you are best to try to settle your dispute with mediation, as the Courts do not look favourably on disputes involving children. They prefer you look beyond your personal issues and provide what is best for your children.
Note: You can apply for Legal Aid and the help of a lawyer when going through the Court system to resolve issues to do with children. Alternatively, you can hire your own lawyer or represent yourself.
You need to be separated from your ex-partner for a year before applying for a divorce. The law allows for you to get back together for up to 3 months before having to start counting the 12 months from scratch.
For example, if you separate for 4 months and then decide to try living together again but then decide before 3 months that it will not work, you must wait another 8 months before applying for a divorce. In this way the 12-month requirement is satisfied (but you do not start the 12-month period again from the beginning if you do not stay together for 3 months or more).
You apply for a divorce by completing an Application for Divorce form and filing it with the Court. The application can be completed and filed either jointly or solely (by either the husband or wife). Once the application form is completed, you must have it signed by a Justice of the Peace, a lawyer or a similar authorised person. Then the application form plus 2 copies, marriage certificate, any supporting documents and fee need to be filed with the Family Law Registry in your state or territory.
They will stamp the application and give you a file number and date and time for a court hearing, usually in 2-4 months’ time. If you have filed your Application for Divorce individually (as a sole application), you must ‘serve’ the documents and hearing date on your ex-partner. You only need to attend the hearing if you filed your application solely and have children (under 18). Otherwise, neither partner has to attend the hearing.
At the hearing, the Court grants the divorce and issues a Final Order. This takes legal effect one month and one day after being issued. The Court then sends a Certificate of Divorce to both partners – and your marriage has been dissolved.
You can apply for a divorce by completing and lodging a Divorce Application form with the Family Law Court (or Federal Magistrate’s Court) of Australia. This process may be done online and both Courts use the same Divorce Application form.
Lodging the Divorce Application with the Family Court of Australia involves a fee of $550 (as of December 2010). Reduced application fees are usually available to people who are experiencing hardship.
You and your spouse need to have the following:
Splitting financial assets and ongoing financial obligations (for example, paying school fees for any children) can be agreed upon during the 12 months before lodging a Divorce Application. Then these arrangements are documented in a Separation Agreement. If an agreement can’t be reached after mediation, the Family Law Court will decide before granting a divorce.
If you can show you have taken reasonable steps to contact or serve your divorce application on your spouse unsuccessfully, then you can apply to the Court for “Substituted Service”. This means you can send the divorce application to a relative or friend of your spouse whom you believe will give it to them.
If this fails or is not possible, then you can apply to the Court for “Dispensation of Service”. This means you have tried everything reasonably possible to locate your spouse but cannot locate an address or other contact details for them.
There is very little you can do to oppose a divorce application, with really only 2 reasons you can oppose:
If you do want to oppose the divorce, you need to file what is called a “Response to Divorce” within 28 days of receiving the divorce application from your spouse. You will need to attend the divorce hearing on the notified date – if you do not attend, the Court will decide the matter without you.
We hope you found this feature article on How to Divorce in Australia helpful.
Vanessa Emilio (BA Hons, LLB, ACIS, AGIA) is the Founder and CEO of Legal123.com.au and Practice Director of Legal123 Pty Ltd . Vanessa is a qualified Australian lawyer with 20+ years experience in corporate, banking and trust law . Click for full bio of Vanessa Emilio or follow on LinkedIn.
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