How Does Divorce Work in Australia?
Divorce in Australia is a legal process that unfolds over time and in stages. It also depends on whether it is a joint or sole application.
As I mentioned, divorce itself is separate from property settlement and child custody arrangements. While those issues often run alongside a divorce, they are legally distinct and can affect the timing in different ways.
What are the Stages of Divorce?
Australia operates under a no-fault divorce system under the Family Law Act 1975. The Court does not consider which party was at fault for the breakdown of the marriage. It is a multi-stage process and can take as little as six weeks or as long as six months. These are the six stages of getting a divorce in Australia:
- 12-month separation: A mandatory 12-month separation period is required before filing. This is often a common dispute we see that can result in delays.
- Complete the divorce application: A divorce application can be filed as either a joint application (both parties agree) or a sole application (one party files on their own).
- Receive hearing date: Once the divorce application is filed, the court allocates a hearing date. The time will vary depending on whether a joint or sole application is made.
- Serve papers (sole application): The application must be served on the other party 28 days before the hearing if they are in Australia, or 42 days before the hearing if they are overseas.
- Divorce hearing: If everything is in order, the divorce will usually be granted at that first hearing. However, if the Court requires further information, the application may be adjourned to later.
- Divorce finalised: The divorce becomes final 1 month and 1 day later.
Property and Children’s Arrangements Are Separate from Divorce
A divorce order ends the marriage. It does not address property distribution or children’s arrangements.
Property settlement is a completely separate legal process. You have 12 months from the date your divorce becomes final to commence proceedings for property settlement.
Parenting arrangements, covering where children live and how they spend time with each parent, are also handled separately. The court makes divorce orders and parenting orders independently. If parenting is contested, those proceedings run on their own timeline, which can stretch well beyond the divorce itself. Where there are children under 18, the Court must be satisfied that parenting arrangements are in place. If not, the divorce may be delayed.
Spousal maintenance applications must also be made within 12 months of the divorce becoming final.
How Does a Joint Application Work?
When both spouses agree to the divorce and the separation date, a joint application is almost always worth pursuing.
When applying jointly, both parties sign the application. The court reviews it, confirms that the separation period has been satisfied and issues the divorce order without either of you needing to appear in person, unless you have children under 18, in which case the court requires proof that reasonable arrangements have been made for the children.
Service also stops being a problem. In a sole application, you’re required to serve the application on your spouse and file proof of that service. With a joint application, you’ve both already signed the documents, and that removes one of the most common causes of delay.
The timeline becomes reasonably predictable. You prepare the application, file it, wait for a hearing date to be allocated, typically six to eight weeks from filing, and the divorce order takes effect one month and one day after it’s made. From filing to a sealed divorce order, most joint applications are completed within three to four months.
How Does a Sole Application Work?
Sole applications are where I find that most procedural issues and disputes arise. And the single biggest problem, the one I see repeatedly, is a dispute over the separation date. If the court isn’t satisfied that you’ve been separated for 12 months, it won’t grant the divorce.
In a sole application, the other spouse sometimes disputes the date of separation. That disagreement alone can derail everything. At that point, the matter may become contested rather than administrative.
Separation is not a single event, such as the day someone moved out, the day you stopped sharing a bed, or the day divorce was first discussed. The courts look at a combination of factors such as communication between the parties, discussions with friends and family, separated finances and more.
Resumption of cohabitation resets the clock, unless an attempt at reconciliation lasted less than three months. If you separate, resume cohabitation for four months, and then separate again, the 12-month clock starts from the second separation date. We’ve had clients who didn’t realise this and believed their earlier separation still counted.
In these types of situations, divorces can take well over six months to finalise.
Service Problems in Sole Applications
If you have made a sole divorce application, you must serve the document to your spouse at least 28 days before the court hearing if they are in Australia and at least 42 days before the court divorce hearing if they are overseas.
The applicant cannot personally serve the documents. If your spouse is difficult to locate, overseas, or actively avoiding service, this issue can significantly delay the process.
Delays are particularly common where a respondent avoids service or where there are unresolved concerns about children or property. The Court must be satisfied that appropriate arrangements are in place, especially where children are involved.
Contesting a Divorce Application
Respondents can’t oppose a divorce simply because they don’t want one. Australia’s no-fault system removes that avenue. A respondent can, however, contest the application on the basis that the 12-month separation requirement hasn’t been met or that there are children under 18 whose arrangements the court should look at more closely.
A contested hearing can add months, and the divorce won’t be granted until the court is satisfied with the evidence. If the dispute concerns the separation date, both parties will likely need to file affidavits and attend court, which is usually by phone.
Why is There a Waiting Period After the Hearing?
Once the court makes a divorce order, it doesn’t take effect immediately. There’s a mandatory one-month-and-one-day waiting period before the final divorce is granted.
This means even in the fastest possible scenario, you’re looking at roughly three to four months from filing to absolute divorce. For most sole applications, the waiting period can go longer than six months, depending on the situation.
How to Avoid Unnecessary Delays
Delays can make the whole process more difficult than it already is. While every case is different, some preparation can help avoid unnecessary additional waiting periods.
Be Clear on the Separation Date Before Filing
If there’s any ambiguity, whether you lived under the same roof, had periods of attempted reconciliation, or had communications that may leave things unclear, document the date carefully and gather supporting evidence before you lodge.
Use a Joint Application Where Possible
Have an honest conversation with your spouse. Even if the relationship is difficult, agreeing on a joint application is almost always in both parties’ interests. It’s faster, cheaper and removes the possibility of a contested hearing on the separation date.
If you do need to file a sole application, make sure the papers are served correctly at the start. Incorrect service, failed service, or lost paperwork could mean unnecessary delays.
Settle Children’s and Property Matters As Soon As Possible
Don’t treat the divorce as the end of the legal process. The 12-month property settlement limitation period starts on the date your divorce becomes absolute. Engage a family lawyer to deal with property, parenting, and maintenance issues before or concurrently to avoid prolonging the process.
Do Parties Need to Attend a Divorce Hearing?
Most divorce hearings are now conducted electronically, and in many cases, attendance is not required. You can get a divorce without going to court.
However, attendance may be necessary in certain situations, including:
- where a party wishes to attend
- where there are children under 18, and the respondent has requested to attend
- where the respondent opposes the divorce
- where there are issues with service
It’s Easiest to Resolve Property and Children’s Arrangements Before Applying for Divorce
A divorce order does not resolve parenting arrangements, property settlement, financial support or maintenance. That said, they can still affect the timing and practical management of a divorce application.
If there are children under 18, the Court must be satisfied that arrangements have been made for their care, welfare and development before granting a divorce, unless there is another proper reason for the divorce to proceed. The Application for Divorce requires details about matters such as where the children live, how they spend time and communicate with each parent, their education, health and financial support. If the information provided is not sufficient, the Court may adjourn the application so that further evidence can be provided. This requirement is reflected in section 55A of the Family Law Act 1975.
Property settlement should also be considered early. Although divorce and property proceedings are separate, once a divorce becomes final, a party to a marriage generally has 12 months to file an application for property settlement or spousal maintenance. If that deadline is missed, the party will usually need the Court’s permission before filing, and that permission is not automatic.
For that reason, it is often sensible to seek advice on parenting, property, and maintenance before filing for divorce, or at least at the same time. Doing so can reduce the risk of delay, avoid missed deadlines and ensure the divorce application forms part of a broader plan for finalising the legal issues arising from separation.
Arcadian Legal Can Assist You During Your Divorce
As a divorce lawyer for over 20 years, I’ve assisted many clients with divorce applications.
In my experience, delays are rarely caused by the Court process itself. More often, they arise from disputes, procedural issues or incomplete preparation.
Having the right guidance can make this process far more manageable. An experienced divorce lawyer ensures that each step is completed correctly and on time, reducing the risk of delay and helping you move forward with your divorce.
If you are considering divorce and would like clear, practical advice for your situation, the team at Arcadian Legal is here to assist.
