Separation
I’m thinking about getting divorced
I want to know if I can get divorced
- Before you can apply to get divorced you need to be able to satisfy the court that you:
- were legally married; and
- are an Australian citizen, live in Australia and regard it as your permanent home, or ordinarily live in Australia and have done so for at least 12 months; and
- have been separated from your ex for at least 12 months; and
- are not going to resume your relationship with your ex; and
- if you have children, that there are proper arrangements in place for their care.
- It’s best to wait until you’ve been living apart for 12 months, but you can still apply if you’ve been living separately under the same roof for 12 months.
I'm ready to apply for divorce
- You can apply online using the Commonwealth Courts Portal.
- You need access to a computer, printer, and a scanner.
- You need a copy of your marriage certificate and an English translation if the original is in another language.
- The person who translates the certificate must complete an Affidavit Translation of Marriage Certificate and sign it in front of a JP or a lawyer.
- You need to sign your divorce application in front of a JP or a solicitor and upload it onto the Portal.
- You need a credit card to pay the divorce fee.
- You may be entitled to pay the reduced fee if you meet certain criteria.
- You need to choose the location of the court you would like to decide your application and the date of the hearing.
- You need to arrange for someone over the age of 18 years old to give your ex a copy of your divorce application at least 28 days before the divorce hearing if they live in Australia or at least 42 days before the divorce hearing if they live overseas.
- The person who gives your ex a copy of the divorce application needs to complete an Affidavit of Service by Hand and sign it in front of a JP or a lawyer.
- You need to upload the Affidavit of Service by Hand onto the Portal.
- You need to attend the hearing if you have children under 18 years old or you haven’t been able to give your ex a copy of your divorce application. The court will make the divorce order if you have satisfied the criteria.
- The divorce order will come into effect and can be downloaded from the Portal 31 days after the hearing.
We’ve been living separately under the same roof for over 12 months
- You can apply for divorce.
- You and another person who knows about your situation, need to write a statement explaining how you have been living separately under the same roof. This statement, called an affidavit, needs to be uploaded with your divorce application.
My ex doesn’t want to get divorced
- They don’t need to agree. You can apply on your own and as long as the court is satisfied you are eligible, the court will grant the divorce.
- See I'm ready to apply for divorce for details about how to apply to get divorced.
We were married overseas
- You can still apply for divorce.
- You need a copy of your marriage certificate and an English translation if the original is in another language.
- The person who translates the certificate must complete an Affidavit Translation of Marriage Certificate and sign it in front of a JP or a lawyer.
I was in a same sex marriage
- You can apply for divorce.
- The same process applies for same sex couples wanting to apply to divorce as heterosexual couples.
Kids
We agree about the kids
- You don’t need to do anything else.
- You can write your agreement down. If you and your ex sign and date it, it becomes a parenting plan.
- A parenting plan can’t be legally enforced but the court can consider a parenting plan if you ever end up in court about the kids.
- The Child Support Agency can use a parenting plan to review child support payments.
- If you want something that’s legally enforceable, you can take your agreement to a lawyer and ask them to help you apply for consent orders. Make sure you are happy with and able to follow the orders, including into the future, because they can be difficult to change.
We can’t agree about the kids
- You need to attempt mediation with your ex before going to court unless your matter is urgent or there has been family violence and it’s not safe to mediate.
- Contact us, Legal Aid, or a Family Relationship Centre for help.
- If you can’t reach an agreement after mediation, you can apply to a court for parenting orders.
- The court will make orders that they believe are in your kid’s best interests.Â
- The law says it is in kids best interests to have a meaningful relationship with both parents and to be protected from harm.
- The law also says that is more important to protect them from harm than to benefit from having a meaningful relationship with both parents.
For more information visit our Kids section.
Your property and stuff
I‘m worried about our stuff and who gets what
- Property of your relationship is all the assets and debts that are in your name, or your partner’s name, or joint names, including superannuation.
- You can make decisions about how to separate your property while you are still together and talking about separation, or after you separate.Â
- If you cannot reach an agreement about how to divide your property, you have 12 months from your divorce taking effect, or 2 years from the end of your de facto relationship, to apply for property division orders.
We agree about how to divide our stuff
- You do not need to do anything further but if you own property together, you should get legal advice about how to divide this property fairly.
- If you want your agreement to be legally enforceable, you can take your agreement to a lawyer and ask them to apply for consent orders. This will make your agreement legally enforceable.
We can’t agree about how to divide our home and stuff
- You and your ex can take the property that is in your name. The property you take will be taken into account when are trying to reach an agreement or a decision is made about how to divide the property of your relationship.
- Take a list of the value of all the property you and your ex own to a lawyer for advice about how to divide your property fairly.
- If you don’t know the value of your ex’s property you or a lawyer can ask them for this information.
- You or your lawyer can try to negotiate with your ex.Â
- If you still can’t reach an agreement, you can apply to the court for property division orders.
- The court will divide your property fairly after looking at the contributions you and your ex made and your current and future needs.
For more information see our Home, belongings and debt section
