Separation & Divorce | Divorce Laws | Barwon Community Legal Service
Quick exit
Separated couple meeting with counsellor to discuss divorce laws

Separation and Divorce

The content on this site is information only and is not legal advice. If you need legal advice please contact us.

Understanding separation and divorce laws in Australia

If your relationship has broken down, you have many decisions to make, including when to separate from your husband or wife (your spouse) and whether you should divorce. It helps to understand the requirements for a legal separation, and how divorce laws work.

What is separation?

Separation happens when you and your partner or spouse no longer live together as a couple in a domestic relationship.

Both married and de facto couples can separate, including same-sex couples. But married couples who separate must meet legal requirements before they’re allowed to divorce.

Before divorcing, Australian law says that you and your spouse must have lived apart, leading separate lives, for at least 12 months.

You need to be clear about the date you separated. If you and your spouse agree to separate, this may not be an issue. But sometimes, only one party wants to separate.

If you’re in this situation, you will need to be clear that you’re separating from a particular date, especially if you’re continuing to live in the same home.

It’s best to confirm the date of separation in writing to your spouse, for example, by email or text message. Make sure you save the email or message, in case you later need it to prove the date of separation.

Telling your family and friends may also be helpful because they may be able to verify the date of separation if it becomes an issue later.

If you and your spouse get back together (reconcile) and then separate again, you don’t have to start the 12 months again, so long as your reconciliation was for less than three months.

Yes, you’re still legally married during separation and until your divorce is final.

Yes, it’s possible to separate with both you and your spouse continuing to live in the same place. This arrangement is known as separation under one roof.

Separated couples may choose to live under one roof for many reasons, including to save money, or to avoid disrupting their children’s lives. Every situation is different. If you’re planning to separate, it’s best to consider what will work in your circumstances.

Separation under one roof may make your divorce a little more complicated, because you need to prove that you were both living separate lives, despite sharing the same home. The 12-month separation period commences as soon as you and your partner start living separately, even if you’re still under the one roof. Separate living may include:

  • Sleeping in separate rooms
  • Eating separately
  • Going out separately
  • Managing your finances separately

Because every situation is different, each couple will manage their separation in their own way.

If you and your spouse are separated but living under one roof, a court may require you to provide an affidavit when making your divorce application. An affidavit is a way of giving witness evidence to a court, in a document rather than spoken evidence.

The affidavit will need to say why you and your spouse separated but continued to live under one roof. It must set out all the ways your living situation changed since you separated. This may help to prove your separation.

You can find a fact sheet for affidavit requirements in situations of separation under one roof on the Federal Circuit Court’s website.

Gavin and Saanvi’s proof of separation

Gavin and Saanvi are married but have been separated for 12 months. When they separated, they decided to both stay in the family home to share the care of their two young children. They sleep in separate bedrooms and have a roster for spending time with the children after school and on weekends. They continue to eat evening meals as a family.

Gavin and Saanvi have told their family and close friends about their separation. They haven’t gone out to any social gatherings together since they separated.

Saanvi has decided to apply for a divorce. Her lawyer has suggested she ask her family and friends to sign affidavits to confirm the separation. Saanvi asks her brother and some friends to provide affidavits. They agree because Gavin and Saanvi had previously told them they were separating but living under one roof.

What is divorce?

Divorce is the end of a marriage by a legal process. Australian divorce laws refer to this as dissolution of marriage.

The divorce process starts with an application to court. The court then decides whether to grant the divorce.

Australia has no-fault divorce laws, meaning that it doesn’t matter if you or your spouse did something to cause the marriage to break down. A court won’t consider whether either party was at fault.

When working out whether to grant a divorce, a court will consider whether the marriage has irretrievably broken down, meaning that it can’t be repaired. A court does this by deciding whether:

  1. You and your spouse have been separated for at least 12 months
  2. There’s no chance of getting back together

If you and your spouse have children under 18 years of age, you must be able to show a court that you’ve made proper arrangements for their care, education, health and welfare.

Whether your marriage is same-sex or different-sex, either you or your spouse can apply for a divorce in Australia if:

  • You’re an Australian citizen; or
  • You live in Australia permanently; or
  • You usually live in Australia and have done so for at least 12 months before making the divorce application

Australian law must be able to recognise your marriage. In other words, you must have been legally married in Australia, or if you were married in another country, that country must recognise that your marriage is legal.

There are special requirements for short-term marriages. If you’ve been married for less than two years, you’ll both be required to attend counselling sessions to work out whether there’s a chance of getting back together. If there’s no chance, the counsellor will give you a certificate of attendance. You must provide this certificate to court as part of your divorce application.

In some cases, a court won’t require a certificate for short-term marriages, for example, in situations where family violence has occurred, or if your spouse refuses to attend counselling. If this happens, you’ll need to apply to court to allow the application to go ahead without the certificate.

Speak to one of our lawyers to find out more about counselling certificate requirements.

The Commonwealth Family Law Act covers divorce laws. The Act applies to family law issues throughout Australia. Getting a divorce in Victoria is covered by the same laws and processes as the rest of Australia.

You can complete your divorce application online. It’s a cost-effective option for many people. Often, there’s no need to get a lawyer’s help.

It’s important to understand that a divorce application doesn’t cover other issues, for example, children and parenting, or dividing property and assets. These are separate issues, and you may need legal help to work them out, depending on how complicated they are.

A divorce application is only concerned with legally ending the marriage.

If you’re confident in using a computer, you can visit the Federal Circuit Court website to start your divorce application.

If you’re not confident, speak to one of our lawyers to arrange some assistance.

You can apply for a divorce jointly with your spouse (a joint application), or by yourself (a sole application).

You will need to provide your marriage certificate. If you were married in Victoria, you can apply to Births Deaths and Marriages (BDM) Victoria for a copy of your certificate (if you don’t already have one). If you were married in another part of Australia, or another country, contact the BDM registry in that State, Territory or country.

If you were married in a non-English-speaking country, you’ll need to have your marriage certificate translated into English by an accredited interpreter. The divorce application form has more information about how to find an interpreter.

When you file your application, you’ll also need to provide any certificates or affidavits (in addition to your marriage certificate). An appropriate person must witness the affidavits, for example, a lawyer, police officer or Justice of the Peace. We can help with this. Contact us to book a time to sign your affidavits and have them legally witnessed.

Once you complete your application, you can file it online according to the instructions. The Court will charge you a filing fee, payable by credit card or a pre-paid debit card. For more information, see How much does it cost? section below.

You’ll also be asked to select a court date, even if you’re not required to attend. For more information, see Do I have to attend court? section below.

If you’ve made a sole application for divorce, you’ll need to serve your divorce papers on your spouse. This is an important part of the process because it notifies your spouse of the divorce application. A court won’t grant your divorce unless it’s satisfied that you served the documents on your spouse, or that you made reasonable efforts to do so.

You can serve the application by post, by a process server, or by some other person, such as a friend. You can’t serve the documents yourself.

Time limits apply for service of the documents, and it’s critical to your application that you stay within the time limits. If you don’t, a court may reject your application, and you’ll have to start the process again.

If your spouse lives in Australia, you must serve the divorce papers at least 28 days before the court hearing date. If they’re overseas, divorce papers must be served at least 42 days before the hearing date.

If you don’t know where to find your spouse, you can apply to a court for:

  • An exemption that no longer requires you to serve them with the divorce papers
  • An alternative way to serve them (for example, by email)
  • An order allowing you to serve someone else with the documents (for example, a family member or place of work)

To learn more, see the Federal Circuit Court’s tips for people who are having trouble serving a divorce application.

Once the application is served, you need to let the court know by filing an affidavit of service, along with proof of signature. The affidavit must be appropriately witnessed.

For more information about the service of documents, visit the Federal Circuit Court’s service information page.

If you need to use a process server but you’re not sure where to start, contact us for help.

When you make your divorce application, the court will fix a hearing date. In some circumstances, you need to go to court for this hearing. In other circumstances, you don’t

If you or your spouse (or both of you) have made a divorce application and you don’t have any children under 18 years old, you don’t need to attend.

You do need to attend court in circumstances which may include any of the following:

  • Either you or your spouse made a sole application, and you have children under the age of 18 years
  • You made a joint application with your spouse, and you have children under the age of 18 years
  • You indicated in your divorce application that you wanted to attend the hearing
  • You’re having trouble serving the divorce papers on your spouse, and you need the court’s help to either allow you to serve in some other way, or not at all
  • Your separation was more complicated than usual, for example, you separated but continued to live under one roof
  • You’ve been married for less than two years

If you’re concerned that you will have difficulties attending court, for example, due to physical disability or illness, or distance, contact us for advice or speak to your nearest Federal Circuit Court registry.

Yuto tries to serve divorce papers on Dave

Two years after his husband Dave left him, Yuto has decided to apply for divorce. Yuto knows that Dave went to live in Queensland, but he hasn’t heard from Dave for more than a year. He doesn’t know where Dave’s living. Yuto asks relatives and friends if they know where Dave is, and searches for him on social media, but can’t find him. Yuto decides to get help from a lawyer.

Yuto’s lawyer drafts an affidavit, outlining all Yuto’s efforts to track down Dave. Yuto files the affidavit at court, and then attends on the hearing date. He explains the situation. The court orders that Yuto isn’t required to serve the documents on Dave, or anyone else, because no one knows where Dave is.

The divorce process

  • Visit the Federal Circuit Court website
  • Fill in the online divorce application
  • Provide your marriage certificate
  • Pay the fee
  • Get your hearing date
  • Arrange for service of the divorce papers
  • File the affidavits of service, and proof of signature
  • Attend court on your hearing date
  • Wait for final divorce papers

The fee for filing a divorce application depends on which court you choose. The Family Court is usually more expensive than the Federal Circuit Court.

The Federal Circuit Court’s fees are around $900 to $1000. If you make a sole application, you’ll have to pay the full fee yourself. If it’s a joint application, you can split the fee with your spouse.

In some circumstances, the Court will reduce the fee, for example, financial hardship. But even if you’re on a pension, you’ll still have to pay a fee.

The fee is payable only by credit card or pre-paid debit card.

You may also need to allow for extra costs, for example, applying for a copy of your marriage certificate, having your marriage certificate translated, or paying a process server for service of documents.

For more information about fees, visit the Federal Circuit Court’s Online Divorce Application page.

Your divorce becomes final one month and one day after the hearing at which a court orders the divorce. Because you’re technically still married until the divorce order takes effect, you can’t marry again until the one month and one day period has passed.

Getting divorced is a good reminder that you should consider your other affairs. The most pressing of these are arrangements for children and property settlements.

If you want to apply to divide property and assets, or for spousal maintenance, you must do so within a year of the divorce becoming final. Applications after this time risk being rejected by a court.

You should also consider making a new will, especially if you no longer want your spouse to inherit anything from you. You’ll also need a new will if you’ve changed your name or your address.

Similarly, if you’ve nominated your spouse to receive a death benefit from your superannuation fund, it’s a good time to review that arrangement.

Changing your last name because you’re no longer married is your choice. You’re not legally required to keep your married name, and you’re not legally required to change it.

If you were married in Australia, you’re allowed to go back to using your previous name without formally changing it. But you will need important documents such as your birth certificate, marriage certificate and divorce certificate to change your name on identification, bank accounts, utility accounts and others.

If you were married overseas and want to go back to using your previous name, you’ll have to formally change your name with Births, Deaths and Marriages Victoria.

Getting a divorce isn’t always straightforward

Other issues often complicate the process, such as property division and arrangements for children. It’s a good idea to have some legal guidance along the way. Contact us to find out if we can help you.

Call us today

Last modified on April 29th, 2021 at 9:42 am

The content on this site is information only and is not legal advice. If you need legal advice please contact us.