Divorce is the formal legal ending of a marriage. It is completely separate from dividing your assets (Property Settlement) or deciding who the children live with (Parenting Arrangements). Many people confuse these three processes, but in Australia they are handled independently—even though they often overlap in timing.
In Australia, we have a “No Fault” divorce system. This means the Court does not need to know why the marriage ended (e.g., infidelity or unreasonable behaviour). The only ground for divorce is that the marriage has broken down irretrievably. You do not need your spouse’s permission, and neither party needs to prove that the other did something wrong.
This guide walks you through everything you need to know about divorce in Australia in 2026—from eligibility requirements and the application process, through to property settlement, children’s arrangements, and what happens if you were in a de facto relationship instead of a marriage.
Eligibility for Divorce in Australia
Before you can apply for a divorce, you need to meet several requirements set out in the Family Law Act 1975 (Cth). These are non-negotiable, and the Court will check each one before granting your divorce order.
The Requirements
To be eligible to apply for divorce in Australia, you must satisfy all of the following:
- 12 months of separation: You and your spouse must have been separated for at least 12 months and 1 day before filing the application. There is no way around this requirement.
- Jurisdictional connection: At least one of you must be an Australian citizen, ordinarily resident in Australia, or regard Australia as your permanent home (domicile). If you married overseas, you can still divorce in Australia provided you meet this requirement.
- Valid marriage: Your marriage must be recognised as valid under Australian law. This includes marriages performed overseas, provided they were lawful in the country where the ceremony took place. Same-sex marriages are fully recognised following the Marriage Amendment (Definition and Religious Freedoms) Act 2017.
- The marriage has broken down irretrievably: This is the sole legal ground for divorce. In practice, the 12-month separation period is the evidence the Court relies on to confirm this.
If you were married overseas and do not have your original marriage certificate, or it is in a language other than English, you will need to obtain a certified translation before filing your application.
How ezylegal helps: Not sure whether you meet the eligibility requirements? Our AI intake assistant, Rachel Z, walks you through a series of simple questions to confirm your eligibility before our lawyers begin any work. Start a free chat now.
The 12-Month Separation Rule
Before you can apply for a divorce, you must satisfy the Court that you and your spouse have been separated for at least 12 months and 1 day. This is the single most important requirement, and the date of separation will be scrutinised by the Court.
When Does Separation Start?
Separation begins when one or both parties form the intention to end the marriage and act on that intention. This does not necessarily mean moving out of the family home on a specific date. It can be the date you told your spouse the marriage was over, the date one of you moved into a separate bedroom, or the date you began living entirely independent lives.
It is critical to document your date of separation clearly. If there is a dispute about when you actually separated, the Court may require additional evidence such as statutory declarations from friends or family, bank statements showing separate finances, or lease agreements.
”Separation Under One Roof”
It is common for couples to remain living in the same home after separating due to financial pressures, childcare logistics, or the time it takes to find alternative accommodation. This is called “separation under one roof.”
You can still count this time towards your 12 months, but you will need to provide extra evidence (an affidavit) proving that you were living independent lives. The Court will look at factors such as:
- Sleeping arrangements: Were you sleeping in separate rooms?
- Household duties: Were you cooking, cleaning, and shopping separately?
- Social life: Did you stop attending social events together as a couple?
- Financial separation: Did you maintain separate bank accounts and finances?
- Sexual relationship: Had the intimate relationship ended?
- Communication: Were you communicating only about practical matters (e.g., children, bills)?
You will also generally need a supporting affidavit from a third party—such as a friend, family member, or neighbour—who can confirm that they observed the separation.
How ezylegal helps: Our AI intake assistant, Rachel Z, helps you document these dates and details clearly so our lawyers can draft the necessary affidavits for you. This is one of the most common areas where applications get delayed, so getting it right the first time matters.
Brief Reconciliation
If you and your spouse attempted reconciliation during the 12-month period, the rules allow for one period of resumed cohabitation of up to three months without resetting the separation clock. If the reconciliation lasted longer than three months, or if there was more than one attempt, the 12-month period restarts from the date of the most recent separation.
Sole vs. Joint Applications
There are two ways to apply for a divorce:
- Joint Application (Recommended): Both you and your ex-spouse agree to the divorce and sign the paperwork. This is faster, cheaper, and usually does not require a court attendance. It signals to the Court that both parties accept the marriage is over, which streamlines the process.
- Sole Application: You apply on your own and “serve” the papers to your ex-spouse. This is necessary if your ex refuses to sign, cannot be found, or is simply uncooperative. After being served, your spouse has 28 days to respond (or 42 days if they are overseas).
Which Should You Choose?
In the vast majority of cases, a Joint Application is the better option. It is less expensive because you share the filing fee, it avoids the cost and complexity of formal service, and it usually does not require anyone to attend court.
However, a Sole Application is sometimes the only realistic option. Common reasons include:
- Your ex-spouse refuses to engage or sign documents
- You have lost contact with your ex-spouse
- There is a history of family violence that makes communication unsafe
- Your ex-spouse is overseas and unresponsive
If you need to make a Sole Application and cannot locate your ex-spouse, you may need to apply for substituted service (e.g., serving the documents via email or social media) or dispensation of service (asking the Court to waive the service requirement entirely). Both require a separate application and supporting evidence.
How ezylegal helps: We handle both Joint and Sole Applications at a transparent fixed fee. If service becomes complicated, our lawyers manage the process for you, including applications for substituted service.
How to Apply for Divorce Online
All divorce applications in Australia are now lodged electronically through the Commonwealth Courts Portal (www.comcourts.gov.au). Paper applications are no longer accepted.
Step-by-Step Process
- Create an account on the Commonwealth Courts Portal. For a Joint Application, both parties need their own account.
- Complete the application form. You will need to provide personal details, your marriage certificate, details of any children under 18, and evidence of your 12-month separation.
- Upload supporting documents. These include a certified copy of your marriage certificate (or a certified translation if the certificate is not in English) and any affidavits required (e.g., for separation under one roof).
- Pay the filing fee. As of 1 July 2025, the Court filing fee is $1,125. If you hold a Health Care Card, Pensioner Concession Card, or Commonwealth Seniors Health Card, the reduced fee is $375. You can also apply for a fee exemption based on financial hardship.
- Serve the documents (Sole Applications only). After filing, you must arrange for your ex-spouse to be served with the divorce papers. You cannot serve them yourself—it must be done by a third party or a professional process server.
- Attend the hearing (if required). For most Joint Applications without children under 18, no hearing is necessary. The Court processes the application “on the papers.” For Sole Applications or cases involving children under 18, a brief court hearing may be scheduled.
- Receive your divorce order. If the Court is satisfied, it will make a divorce order. The divorce becomes final one month and one day after the order is made. At that point, you receive a divorce certificate and are free to remarry.
Common Mistakes That Delay Applications
- Uploading a marriage certificate that is not certified or not translated
- Providing inconsistent separation dates between the application and the affidavit
- Not filing the required affidavit for separation under one roof
- Failing to properly serve documents in a Sole Application
- Not paying the correct filing fee
How ezylegal helps: Our lawyers review every document before it is filed to ensure your application is complete and correct the first time. This avoids costly delays and the frustration of having your application sent back by the Court.
Do I Need to Go to Court?
Whether you need to physically attend court depends on your circumstances:
- No court appearance required: Joint Applications with no children under 18. The Court deals with these administratively.
- Court appearance may be required: Sole Applications, or any application where there are children of the marriage under 18. The Court wants to ensure that proper arrangements are in place for the children’s care, welfare, and development.
Even when a court hearing is scheduled, it is typically brief—often no more than five to ten minutes. The judge or registrar will confirm the details of the application and check that appropriate arrangements exist for any children.
With ezylegal, even if court attendance is required, our lawyers can often appear on your behalf so you don’t have to face a stressful courtroom. This is particularly valuable if you live in a regional area or simply find the prospect of attending court overwhelming.
Divorce and Children Under 18
If you and your spouse have children under 18, the Court pays particular attention to the arrangements in place for their care. This does not mean the Court will make parenting orders as part of your divorce—divorce and parenting are separate legal processes. However, the Court needs to be satisfied that “proper arrangements” exist before granting the divorce.
Section 60CC: The Best Interests of the Child
Under Section 60CC of the Family Law Act 1975, the Court considers a range of factors when assessing what is in the best interests of a child. These include:
- The benefit of having a meaningful relationship with both parents (where safe to do so)
- The need to protect the child from physical or psychological harm, including exposure to family violence or abuse
- The child’s views, taking into account their age and maturity
- The nature of the child’s relationship with each parent and other significant people
- The capacity of each parent to provide for the child’s emotional and developmental needs
- The practical difficulty and expense of the child spending time with each parent
- Any history of family violence involving the child or a member of the child’s family
Parenting Plans vs. Consent Orders
There are two main ways to formalise arrangements for children:
- Parenting Plan: A written agreement between parents that sets out the arrangements for the children. It is not legally enforceable, but it can be presented to the Court as evidence of the agreed arrangements. Parenting plans are flexible and can be updated as circumstances change.
- Consent Orders: A formal agreement that is submitted to the Court for approval. Once approved, consent orders are legally binding and enforceable. If one parent breaches a consent order, the other can apply to the Court for enforcement.
For most families going through divorce, a Consent Order is the recommended approach because it provides certainty and legal enforceability. However, a Parenting Plan can be a useful interim arrangement while longer-term orders are being finalised.
Family Dispute Resolution
Before you can apply to the Court for parenting orders, you are generally required to attend Family Dispute Resolution (FDR)—a form of mediation. The mediator will help you and your ex-spouse try to reach an agreement about the children without going to court.
There are exceptions to this requirement, including where there has been family violence or where the matter is urgent (e.g., a risk of child abduction).
How ezylegal helps: We draft parenting plans and consent orders at a fixed fee. Our lawyers ensure the documents meet Court requirements and protect the best interests of your children. Learn more about our family law services.
The Cost of Divorce
Traditional law firms often charge by the hour, meaning a simple divorce could cost you thousands if your lawyer spends time on phone calls, emails, or letters back and forth.
What Are the Typical Costs?
The costs of divorce in Australia generally include:
- Court filing fee: $1,125 (or $375 with a concession card) as of 1 July 2025
- Legal fees: Traditional firms may charge anywhere from $1,500 to $5,000+ for a straightforward divorce, depending on complexity and hourly rates
- Service fees: If you need to hire a process server for a Sole Application, expect $100–$300
- Translation and certification fees: If your marriage certificate is in another language, certified translation can cost $100–$300
At ezylegal, We Do Things Differently
We use AI to handle the administrative heavy lifting—gathering your marriage certificate, separation dates, and personal details. This allows our expert Australian lawyers to focus purely on the legal review and filing.
The Result? A fixed-fee service that is a fraction of the cost of traditional firms, with a guaranteed timeline. No billable hours. No surprise invoices. No charge for a phone call to ask a question.
Our pricing calculator gives you a transparent quote before you commit to anything.
Property Settlement After Divorce
Divorce and property settlement are separate legal processes. Getting a divorce does not automatically divide your assets. If you want a legally binding division of property, you need to take separate action.
The Four-Step Process
The Court follows a well-established four-step process when determining property settlement:
- Identify and value all assets and liabilities. This includes real estate, bank accounts, superannuation, shares, businesses, vehicles, personal property, and all debts (mortgages, credit cards, personal loans).
- Assess contributions. The Court looks at both financial contributions (income, inheritance, gifts) and non-financial contributions (homemaking, childcare, renovations). Contributions made before, during, and after the relationship are all relevant.
- Consider future needs. Factors include age, health, income-earning capacity, care of children, and the financial impact of the relationship breakdown on each party.
- Determine what is just and equitable. The Court steps back and asks whether the proposed division is fair in all the circumstances. There is no automatic 50/50 split—each case is decided on its own facts.
The 12-Month Time Limit
Once your divorce is finalised, you have 12 months to apply to the Court for property settlement orders. After this deadline, you need the Court’s permission to proceed, and there is no guarantee it will be granted. This is one of the most commonly missed deadlines in family law, and it can have devastating financial consequences.
If you were in a de facto relationship (rather than a marriage), the time limit is two years from the date of separation.
Binding Financial Agreements
An alternative to Court orders is a Binding Financial Agreement (BFA). This is a private contract between you and your ex-spouse that sets out how your assets and debts will be divided. Both parties must receive independent legal advice before signing, and the agreement must comply with specific legal requirements to be enforceable.
BFAs can be entered into before, during, or after a marriage or de facto relationship.
How ezylegal helps: Whether you need consent orders for property settlement or a Binding Financial Agreement, our lawyers prepare the documents at a fixed fee. We make sure your financial interests are protected and that no deadlines are missed.
De Facto Relationship Breakdown
If you were in a de facto relationship rather than a marriage, the process for separating is different. You do not need to apply for a “divorce” because there is no marriage to dissolve. However, you may still need to address property settlement and parenting arrangements.
What Qualifies as a De Facto Relationship?
Under the Family Law Act 1975, a de facto relationship exists when two people (of any gender) live together on a genuine domestic basis and are not legally married to each other or related by family. Factors the Court considers include:
- The duration of the relationship
- Whether you lived together and for how long
- Whether you had a sexual relationship
- Financial dependence or interdependence
- Ownership and use of property
- The degree of mutual commitment to a shared life
- Whether you cared for children together
- The reputation and public aspects of the relationship
Property Settlement for De Facto Couples
De facto couples can apply for property settlement under the same four-step process that applies to married couples. The key differences are:
- No divorce order is required (there is no marriage to end)
- The time limit is two years from the date of separation (not 12 months)
- Eligibility thresholds apply: The Court will only hear your property matter if the relationship was at least two years long, there is a child of the relationship, one party made substantial contributions and a failure to make an order would result in serious injustice, or the relationship was registered under state or territory law
How ezylegal helps: De facto separations can be just as complex as divorce. Our lawyers handle property settlement and parenting arrangements for de facto couples at the same fixed fees as married couples.
Frequently Asked Questions
How long does a divorce take in Australia?
From the date you file your application, it typically takes three to four months to receive a divorce order. If there are complications (e.g., problems with service, incomplete documents, or issues relating to children), it can take longer. The divorce then becomes final one month and one day after the order is made.
Can I get a divorce if my spouse doesn’t agree?
Yes. Australia’s no-fault divorce system means you do not need your spouse’s consent. You can file a Sole Application and have the documents served on your spouse. Even if they object or ignore the papers, the Court can still grant the divorce provided the legal requirements are met.
Do I need a lawyer to get divorced?
Technically, no. You can file a divorce application yourself. However, mistakes in the paperwork can lead to delays, additional costs, and rejected applications. A lawyer ensures everything is done correctly the first time. With ezylegal, the cost of using a lawyer is often comparable to the time and stress of doing it yourself.
What happens to our property when we divorce?
Divorce does not automatically divide your property. You need to either reach an agreement with your ex-spouse (formalised through consent orders or a Binding Financial Agreement) or apply to the Court for property orders. Remember the 12-month deadline after your divorce is finalised.
Can I change my name after divorce?
Yes. Once your divorce is final, you can revert to your maiden name or a former name by presenting your divorce certificate to relevant authorities (e.g., Roads and Maritime Services, your bank, the Australian Passport Office). You do not need a formal name change through the Registry of Births, Deaths and Marriages to revert to a previous name.
What if I was married overseas?
You can still divorce in Australia, provided at least one party is an Australian citizen, is ordinarily resident in Australia, or regards Australia as their permanent home. You will need to provide your overseas marriage certificate (with a certified English translation if applicable).
How much does a divorce cost in 2026?
The Court filing fee is $1,125 (or $375 with a concession card). Legal fees vary widely. Traditional firms may charge $2,000–$5,000+, whereas ezylegal offers fixed-fee divorce services at a fraction of that cost. Use our pricing calculator for a transparent quote.
Is mediation required before going to court?
For divorce applications, no. Mediation is not required. For parenting matters and property settlement, the Court generally expects you to have attempted Family Dispute Resolution or mediation before filing an application. There are exceptions for cases involving family violence or urgency.
What is the difference between separation and divorce?
Separation is when you and your spouse stop living together as a couple. It does not require any legal paperwork or court involvement. Divorce is the formal legal process that ends your marriage. You must be separated for at least 12 months before you can apply for a divorce.
Can I remarry after divorce?
Yes, but only after your divorce order becomes final—which is one month and one day after the Court grants the order. You will receive a divorce certificate that serves as proof. Any marriage entered into before the divorce is final will not be legally valid.
Ready to Move On?
You don’t have to navigate the Federal Circuit and Family Court system alone. Whether your situation is straightforward or complex, our team of experienced Australian lawyers is here to guide you through every step—without the uncertainty of hourly billing.
- Start a Chat: Tell Rachel Z about your situation (it takes 5 minutes and is available 24/7).
- Get a Strategy: Our lawyers review your facts and give you a fixed-fee quote with no obligations.
- We Handle the Rest: We draft, file, and serve your divorce papers. If court attendance is required, we can appear on your behalf.
No billable hours. No surprises. No upfront costs for eligible cases.
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