The short answer: to apply for a divorce in Australia you usually only need to show three things: you and your spouse have been separated for at least 12 months and there is no reasonable likelihood of getting back together; you have a sufficient connection with Australia; and, if there are children under 18, proper arrangements have been made for them. Australia has 'no-fault' divorce, so the court does not look at who was to blame. Applications are generally filed online with the Federal Circuit and Family Court of Australia (FCFCOA) through the Commonwealth Courts Portal.
A divorce only ends the marriage in law. It does not automatically deal with property, maintenance or arrangements for children. Those issues must be negotiated or brought to court separately, and strict time limits start running once the divorce takes effect. This guide brings the common questions together so you can see where you stand and what to do next.
Key points
- You must have been separated for at least 12 months; separation under one roof is possible but needs extra evidence.
- The applicant must be an Australian citizen, regard Australia as home and intend to live here indefinitely, or ordinarily live in Australia and have done so for 12 months.
- A marriage that took place overseas can be ended in Australia; a foreign-language marriage certificate needs a translation and an affidavit.
- A sole application must be formally served on your spouse: at least 28 days before the hearing if they are in Australia, or 42 days if they are overseas.
- A divorce order usually takes effect one month and one day after it is made, and you cannot remarry before then.
- Property or spousal maintenance applications must be filed within 12 months after the divorce takes effect; after that you need the court's permission.
Basic requirements for a divorce
Under the Family Law Act 1975 (Cth), the only ground for divorce is that the marriage has broken down irretrievably, which is shown by 12 months' separation. Separation starts on the day at least one spouse decides the marriage is over and makes that clear to the other by words or conduct; nobody has to move out.
The applicant (or either party in a joint application) must also have a connection with Australia: be an Australian citizen (by birth, descent or grant), regard Australia as home and intend to live here indefinitely, or ordinarily live in Australia and have done so for the past 12 months. People on temporary visas may also qualify if they meet the residence test.
If you have been married for less than two years, you generally need to file a counselling certificate showing you have considered reconciliation; if you cannot attend counselling together, for example because of family violence, you can file an affidavit explaining why.
Separated under one roof
Many families keep living in the same home after separating for financial reasons or to care for children. The law recognises this, but you must file additional affidavits showing your lives have separated, for example sleeping in separate rooms, no longer sharing meals or social life, keeping finances separate and telling family and friends. Ideally both spouses provide one, together with a third party who knows the situation, such as a relative or friend.
A short reconciliation
If you reconcile once for no more than three months and then separate again, the periods of separation before and after can be added together, although the time you were back together does not count towards the 12 months.
Joint or sole application
共同申请（joint application）由夫妻双方共同签署，无需送达对方，法院通常也不要求任何一方出席听证。缺点是必须双方配合，在填写资料和签署上都可能耽误时间。
单方申请（sole application）只需申请人签署，无需对方同意，但必须依法送达对方。对方如不同意，只能基于有限的法律理由反对，例如未满12个月分居或不符合司法管辖条件；宗教或个人理由不是有效的反对理由。
Children: what the court must be satisfied about
Under section 55A of the Family Law Act, if there is a 'child of the marriage' under 18, the court must be satisfied that proper arrangements have been made before it grants the divorce. Children of the marriage include not only the couple's own or adopted children but may also include, for example, a stepchild treated as a member of the family before separation. The application must describe who the children live with, their contact with the other parent, schooling, health and financial support.
The court does not decide parenting arrangements in divorce proceedings; disputes should be dealt with separately through negotiation, mediation or an application for parenting orders. Amendments in force from 6 May 2025 removed the presumption of equal shared parental responsibility, and the court decides each case by focusing on the child's best interests.
Grandparents
Divorce does not end the relationship between grandparents and grandchildren. The Family Law Act expressly allows grandparents to apply for parenting orders, and in deciding a child's best interests the court considers the benefit of the child maintaining relationships with significant people such as grandparents. This is especially important if a parent has died or cannot care for the child.
Service: how to notify your spouse
After a sole application is filed, the application and court documents must be served on your spouse. You cannot serve them yourself; a relative or friend over 18 or a professional process server can hand them over, or they can be posted with an Acknowledgement of Service for your spouse to sign and return. If your spouse has a lawyer who has agreed in writing to accept service, they can be served on the lawyer. A refusal to sign does not necessarily make service ineffective; the server can swear an affidavit about how service was carried out.
As to timing, service must be at least 28 days before the hearing if your spouse is in Australia, and at least 42 days if they are overseas. When your spouse is overseas, you need to consider local law and arrangements such as the Hague Service Convention; service in places such as mainland China or Hong Kong can take a long time, so start early.
If your spouse is avoiding service or cannot be found, you can apply forsubstituted service, for example by email, text message, social media or through a relative with the court's approval. In rare cases where reasonable efforts have failed to find your spouse, you can ask the court todispense with service, but you will need substantial evidence such as enquiries with relatives, former addresses and social media. Electronic service generally requires a court order first; you cannot simply assume it is valid.
Online filing, the hearing and the divorce order
Divorce applications are generally filed online through the Commonwealth Courts Portal, with a copy of the marriage certificate uploaded. A foreign-language certificate must be accompanied by a translation and an affidavit (Affidavit translation of marriage certificate). If you cannot find your certificate, you can request a copy from the births, deaths and marriages registry where you married, or the relevant authority overseas, which may take time. Some people, such as holders of certain concession cards, may apply for a reduced court fee under the criteria published by the court.
Divorce hearings are usually conducted by telephone before a registrar of the court. Under the court's current guidance, you generally do not need to attend for a joint application or a sole application with no children under 18. You need to attend if you indicated you wish to, if you are seeking substituted or dispensed service, if the respondent asks to attend where there are children under 18, or if the respondent files a Response to divorce opposing it. Always follow the court's notice about whether you must attend.
Once granted, a divorce order usually takes effect one month and one day later, and you can then download it from the Portal. Until then you are still legally married and cannot remarry.
Overseas marriages and overseas divorces
A marriage registered in mainland China, Hong Kong, Taiwan, Malaysia, Singapore or elsewhere is generally recognised in Australia if it was valid where it took place, and it can be ended by an Australian divorce if the applicant meets the connection requirements above. Conversely, if you were already divorced overseas under local law and one spouse had a connection with that country, such as domicile, ordinary residence or nationality, the divorce is generally recognised in Australia (section 104 of the Family Law Act) and you do not need to divorce again here.
Note that whether an agreed or court divorce obtained overseas is recognised in Australia depends on the circumstances. When remarrying or dealing with an estate in Australia, you may need translated and certified divorce documents. If you are unsure whether an overseas divorce is effective, get legal advice first.
After the divorce: property, maintenance and other deadlines
Once a divorce takes effect, you have 12 months to apply for property or spousal maintenance orders; for de facto relationships the limit is two years after the relationship ends. After that you need the court's permission, which is only granted in limited circumstances such as hardship. It is therefore safer to deal with property before the divorce or soon after, for example through consent orders or a binding financial agreement negotiated between you.
In Victoria, divorce generally revokes gifts to a former spouse in a will and their appointment as executor (unless the will shows a contrary intention), but it does not automatically update arrangements such as superannuation nominations. Around the time of divorce, review your will, enduring power of attorney, superannuation and insurance beneficiaries. If you wish to resume your pre-marriage name, you can update your passport, driver licence and other documents using your marriage certificate and related papers.
Safety, privacy and getting help
If there is family violence or a safety concern, you do not have to disclose your current address in the documents; you can use a lawyer's address for service and have the lawyer act as the point of contact. The divorce application itself is relatively straightforward, but where your spouse is overseas or hard to serve, you separated under one roof, children's arrangements are disputed, or property and maintenance also need to be resolved, professional advice can reduce the risk of rejected documents and delays. Our lawyers can communicate in Mandarin and Cantonese and assist clients overseas by video conference.
Practical checklist
- Confirm your separation date and gather evidence of separation (if under one roof, prepare affidavits and a third-party witness).
- Obtain your marriage certificate and arrange a certified translation if it is not in English.
- Prepare identity and citizenship or residence documents (passport, citizenship certificate or visa details).
- Prepare details of children under 18: living arrangements, schooling, health and financial support.
- Collect your spouse's latest address, email and phone details for service or an application for substituted service.
- Diary the deadline 12 months after the divorce takes effect for property and maintenance applications.
Frequently asked questions
Can I divorce if my spouse does not agree?
Yes. Australia has no-fault divorce and a sole application does not need the other spouse's consent. If the 12-month separation, Australian connection and children's arrangements requirements are met and service is properly completed, the court will generally grant the divorce. Your spouse can only oppose it on limited legal grounds.
We married in China. Can we divorce in Australia?
Generally yes, provided you or your spouse is an Australian citizen, regards Australia as home or has ordinarily lived here for 12 months. A Chinese marriage certificate needs a translation and a translation affidavit.
What if I do not know where my spouse is?
First make reasonable efforts to find them, such as contacting relatives and checking former addresses and social media. If service is still not possible, you can apply to the court for substituted service or to dispense with service, with an affidavit describing your efforts.
How soon after the divorce can I remarry?
A divorce order usually takes effect one month and one day after it is made, and you can only remarry after it takes effect.
Does a divorce also divide our property?
No. A divorce only ends the marriage. Property and maintenance must be dealt with separately, and an application must be made within 12 months after the divorce takes effect, or the court's permission is needed.
I am already divorced overseas. Do I need to divorce again in Australia?
Usually not. An overseas divorce that is valid under local law, where one spouse had a sufficient connection with that place, is generally recognised in Australia. If in doubt, get legal advice before remarrying or dealing with property.
Chua Tan Associates has practised in Melbourne since 1990, advising in Mandarin, Cantonese and English on separation, divorce, property settlement, parenting arrangements and spousal maintenance. Justin Chua is a nationally accredited mediator and Family Dispute Resolution Practitioner and can help both parties try to reach agreement first. For help, call 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video.
This page is general information only and is not legal advice.
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