In Australia, a divorce order does nothing to your property, your superannuation, or your children. It ends the marriage and nothing else. People routinely discover this months later, after assuming that the piece of paper from the Federal Circuit and Family Court settled everything that needed settling, and by then a critical twelve-month deadline may already be running.
The no-fault principle introduced by the Family Law Act 1975 removed adultery, desertion and cruelty from the equation. Section 48 leaves a single ground: irretrievable breakdown, proved by twelve months of separation. A judicial registrar considering your application will not hear about who did what to whom, because the legislation makes that evidence irrelevant to whether the marriage is dissolved.
What no-fault does not mean is that conduct never matters. Family violence is directly relevant to parenting arrangements and, following amendments to the property provisions that commenced in 2025, is expressly relevant to how a property pool is divided. Understanding which parts of a separation are conduct-blind and which are not is the difference between realistic expectations and an expensive disappointment, and it is the first thing a divorce lawyer will explain at an initial conference.
Three Separate Processes, Three Different Rulebooks
The single most useful correction to make early is that separation produces three distinct legal matters. They can run at the same time, they are decided on different criteria, and only one of them is the divorce.
| Matter | What it decides | Key timing |
|---|---|---|
| Divorce | Legal status of the marriage only | Available after 12 months separation; order takes effect one month and one day after it is made |
| Property and superannuation | Division of assets, liabilities and super | Application must be filed within 12 months of the divorce becoming final, or 2 years from the end of a de facto relationship |
| Parenting arrangements | Where children live and how decisions are made | No divorce required; can be resolved any time after separation |
You can resolve property and parenting without ever applying for a divorce, and many separated couples do exactly that for years. The risk runs the other way: once the divorce order takes effect, the twelve-month clock on property and spousal maintenance applications starts. Filing outside that window requires leave of the court, which is granted only where hardship is shown, and it is not a comfortable position to be in.
Establishing Separation, Including Under One Roof
Separation is a factual question, not a formal one. There is no document to lodge and no register to notify. What matters is that at least one party formed the intention to end the marriage, communicated it, and acted on it. Because the twelve-month period is calculated from that date, it is worth recording it clearly at the time — a dated message, a diary note, or a letter to a family member is often the evidence relied on later.
Separation under one roof is recognised, and it is common where finances make an immediate move impossible. The court requires more evidence in these cases: an affidavit from the applicant explaining the changes in the relationship, and a corroborating affidavit from someone outside the household. Useful indicators include separate sleeping arrangements, the end of shared finances, ceasing to attend social occasions as a couple, dividing household tasks, and telling family, friends, Services Australia and the Australian Taxation Office.
A brief reconciliation does not necessarily restart the clock. If the parties resume cohabitation for less than three months and then separate again, the periods before and after can be added together, though the reconciliation period itself is not counted. A resumption of three months or more resets the twelve months entirely.
The Application Process, Step by Step
Divorce applications are filed electronically through the Commonwealth Courts Portal. The process is genuinely straightforward for most people, and the court publishes a do-it-yourself kit.
- Confirm eligibility: twelve months separation, and a connection to Australia through citizenship, domicile or ordinary residence for at least twelve months.
- If you married less than two years ago, attend counselling and file the resulting certificate, or seek the court leave to proceed without it.
- Choose a sole or joint application. A joint application avoids service altogether and neither party needs to attend the hearing.
- Pay the filing fee, which is indexed annually and sits above one thousand dollars, with a substantially reduced fee available to concession card holders and others experiencing financial hardship.
- For a sole application, arrange service on your former spouse and file proof of service. Service must be completed at least twenty-eight days before the hearing if the respondent is in Australia, and forty-two days if overseas.
- Attend the hearing only if required. Attendance is generally unnecessary for joint applications, and for sole applications where there are no children of the marriage under eighteen.
- Wait for the order to take effect one month and one day after it is made, at which point you are free to remarry.
Where there are children under eighteen, the court must be satisfied that proper arrangements have been made for their care, welfare and development before granting the divorce. This is not a merits assessment of the parenting plan; it is a short section of the application describing the living arrangements, schooling, health care and financial support. It will delay a divorce only if the answers suggest that no arrangements exist at all.
Where Conduct Still Counts
The no-fault label causes the most confusion here, so it is worth being precise about the three areas where behaviour retains legal significance.
- Parenting. The best interests of the child is the paramount consideration, and following the 2024 reforms the safety of the child and carers sits at the top of the list of considerations. The presumption of equal shared parental responsibility was removed by those reforms, so equal time is not a starting assumption and never was a right belonging to a parent.
- Property. Family violence, including economic and financial abuse, is now expressly relevant to a property division, both in assessing the effect on a party contributions and in assessing future needs. Wasting assets — gambling, extravagant spending, deliberate destruction of property — can also be taken into account.
- Spousal maintenance. Assessed on need and capacity to pay rather than blame, but the circumstances that created a disparity in earning capacity, including a career interrupted by caring responsibilities, are directly relevant.
What is not relevant is who ended the relationship, or an affair in itself. Bringing that material into a property matter tends to increase costs and reduce goodwill without changing the outcome.
Property Division and the Steps the Court Applies
Property matters are decided under a structured approach: identify and value the asset pool including superannuation and liabilities, assess the contributions of each party, consider the future needs of each party, and then check that the proposed division is just and equitable overall. There is no presumption of an equal split, and short marriages with unequal contributions frequently produce very unequal outcomes.
Contributions include financial contributions, non-financial contributions such as renovation work, and contributions as a homemaker and parent, which are not treated as inferior. Future needs adjustments consider age, health, income earning capacity, and the care of children under eighteen. Superannuation is treated as property and can be split by agreement or court order, although the split remains preserved in the superannuation system until a condition of release is met.
Two mechanisms make an agreement binding. Consent orders, filed with the court, are the more common and cheaper route and give the certainty of a court order. A binding financial agreement is a private contract requiring each party to receive independent legal advice with a signed certificate, and it can be set aside where those formalities fail. An informal agreement written on paper and signed at the kitchen table binds nobody. Preparation before separation matters as well, and the practical steps involved are set out in this guide to working with a family lawyer before proceedings begin.
Frequently Asked Questions
Can my former spouse refuse the divorce?
Effectively no. Because the only ground is irretrievable breakdown established by twelve months separation, a respondent cannot defend on the basis that they wish to remain married. The narrow grounds for opposing are factual: disputing that twelve months have passed, disputing that the court has jurisdiction, or disputing that service was properly effected.
Do I need a lawyer to get divorced?
Not for the divorce order itself, which many people complete through the online kit without assistance. Legal advice is genuinely important for property, superannuation and parenting, where the decisions are difficult to unwind. A single fixed-fee advice conference before you agree to anything is usually money well spent even if you self-represent afterwards.
What happens to our children if we divorce?
The divorce order changes nothing about parenting. Arrangements are made by agreement, through a parenting plan, or by consent orders, and disputes generally require family dispute resolution and a section 60I certificate before a court application can be filed, subject to exemptions including family violence and urgency.
How does separation affect my will and superannuation nomination?
In most Australian states divorce revokes a gift to a former spouse under an existing will, but separation alone usually does not, which leaves a dangerous gap between separation and divorce. Superannuation death benefit nominations are governed separately by the fund rules and are not affected by divorce at all. Review both documents as soon as you separate.
Does a de facto relationship follow the same rules?
Property and parenting provisions largely mirror those for married couples, but there is no divorce process, and the time limit is two years from the end of the relationship rather than twelve months from a divorce order. There is also a threshold question about whether a de facto relationship existed and when it ended, which married couples never have to argue.
What to Do Next
Write down your separation date and the evidence supporting it, today, before memory becomes contested. Then diarise the property deadline: twelve months from the date any divorce order takes effect, or two years from the end of a de facto relationship. If you have not yet applied for a divorce, resolving property first is often the safer sequence, because it removes the deadline pressure entirely. Broader reading on this site ranges from consumer explainers such as Into The Am to the practical guides collected under Family Law.
This article is general information about Australian family law and is not legal advice; consult a qualified family law practitioner about your circumstances.
