Divorce & Separation FAQ

Separation is the factual end of the relationship. Divorce is the legal end of the marriage. You must be separated for at least 12 months before applying for divorce, but property and parenting matters can start immediately on separation.

Australia has "no fault" divorce. The only ground is that the marriage has broken down irretrievably, evidenced by 12 months of separation with no reasonable likelihood of resumption. Misconduct is not considered.

Yes. Separation does not require living at different addresses. You must show a change in the nature of the relationship, such as separate sleeping, finances, social life, and communicating the separation to family and friends. Evidence is required.

A divorce application is filed online with the Federal Circuit and Family Court of Australia. It can be a sole or joint application. Service on the other spouse is required if sole. The filing fee is set by regulation (reduced rates for concession holders).

For a joint application, usually not. For a sole application where there are children under 18, the applicant must attend the divorce hearing unless appearance is dispensed with. Most divorces are now finalised without contested hearings.

Property settlement is the division of assets, liabilities, and superannuation after separation. It is not automatic — you must reach agreement (consent orders or a binding financial agreement) or apply to the court within the time limits.

The court applies a four-step process: identify assets and liabilities; assess financial and non-financial contributions; consider future needs (section 75(2) factors); and determine whether the outcome is just and equitable. There is no fixed starting point like 50/50.

Yes. Superannuation is treated as property and can be split between parties by a superannuation splitting order or a binding financial agreement. Valuation depends on the fund type (accumulation, defined benefit, or SMSF).

For married couples, 12 months from the divorce becoming final. For de facto couples, 2 years from separation. Out-of-time applications require leave of the court and hardship must be shown.

Parenting orders deal with where children live, how much time they spend with each parent, parental responsibility, and communication. The court's paramount consideration is the best interests of the child.

The Family Law Act sets out primary considerations (benefit of a meaningful relationship with both parents; protection from harm) and additional considerations (child's views, maturity, capacity of each parent, cultural background). Safety is prioritised where there is conflict.

No. Shared care is not an automatic outcome. The 2024 amendments removed the presumption of equal shared parental responsibility. The court focuses on safety and best interests, not equal time.

For parenting matters, yes — parties must attempt family dispute resolution and obtain a section 60I certificate before filing, with exceptions for urgency, family violence, or abuse. Property mediation is also strongly encouraged.

A de facto relationship is a genuine domestic relationship between two people not married or related, living together on a genuine domestic basis. It includes same-sex and opposite-sex couples. Rights are similar to married couples under the Family Law Act.

Largely yes, if the relationship lasted 2 years or more, there is a child of the relationship, or there are substantial contributions that would cause hardship if not recognised. The four-step property process applies equally.

Spousal maintenance is financial support for a former spouse or de facto partner unable to meet reasonable needs, where the other party has capacity to pay. It is separate from property settlement and can be interim or ongoing.

A BFA is a contract made before, during, or after a relationship that sets out how property is divided. It must comply with strict formal requirements including independent legal advice for both parties. Non-compliance can render it unenforceable.

Child support is a separate administrative scheme run by Services Australia based on a formula using parents' income, care percentages, and children's ages. It is distinct from family law maintenance and orders.

Consent orders are court orders made by agreement without a hearing, covering parenting and/or property matters. They are filed with a signed application and the court considers whether the terms are proper for parenting and just and equitable for property.

The court filing fee for divorce is set by regulation (with reduced rates for concession holders). Uncontested divorce with a lawyer typically costs $800-$1,500. Contested property and parenting matters cost considerably more depending on complexity.