Most people who come to us about divorce have already been separated for months, sometimes years. They think the hard part is behind them. Then they discover that the divorce itself is just one piece of a much larger picture, and that some of the decisions they put off during that time now have real consequences.
That gap between what people expect and what the process actually involves is where things go wrong. Not dramatically wrong, usually. But in ways that cost time, money and unnecessary stress.
Here is what catches people out. The divorce order itself does not decide where your children live. It does not divide your property. It does not resolve your superannuation. Those are separate legal processes, and each one has its own rules, its own timeline and its own deadline.
So before you open the Commonwealth Courts Portal and start filling in forms, it is worth understanding exactly what you are applying for, what it does not cover, and what order to tackle things in.
That is what this guide walks through. By the end of it, you will know whether you are ready to apply, what the process actually involves, and what else you need to have on your radar before you file.
Key Takeaways
- Divorce and separation are legally different things. Separation is the starting point. Divorce is the formal legal ending of the marriage, and you can only apply after at least 12 months of separation.
- Divorce does not resolve children’s arrangements or property. These are separate legal processes, each with their own deadlines you cannot afford to miss.
- You do not need your ex to agree. A sole divorce application is valid without their consent, but it must be properly served on them.
- Attendance at court is not required in most cases. Many divorce applications are dealt with by the court on the papers, without a hearing.
- There is a time limit on property and spousal maintenance claims after divorce. Once the divorce order is final, a 12-month clock starts. Missing it can mean losing your right to claim.
- Living together after separation does not automatically disqualify you. Separation under one roof is legally recognised, but you may need to support it with evidence.
Can I get divorced, and am I even ready to apply?
To apply for a divorce in Australia, you need to meet a few basic requirements. The court needs to be satisfied that your marriage has broken down irretrievably. That is the only ground for divorce in Australia. Not fault, not blame, not who left or why. Just that the marriage is over with no reasonable likelihood of resuming.
The way you demonstrate irretrievable breakdown is straightforward: you show that you have been separated for at least 12 months.
Beyond that, at least one of you needs to be an Australian citizen, to regard Australia as your permanent home, or to be ordinarily resident in Australia and have been for at least 12 months before you apply.
If you were married overseas, your marriage is still recognised here provided it was valid in the country where it took place. Same-sex marriages are treated identically to any other marriage.
One thing people often ask at this stage is whether they need their original marriage certificate. You do. If you do not have it, you can usually obtain a certified replacement from the registry where the marriage was registered. If you were married overseas, a certified copy from the relevant overseas authority is what you need. In some cases where a certificate genuinely cannot be obtained, an affidavit explaining the circumstances can be accepted, but that is a situation worth discussing with a lawyer before you file.
Expert Tip: Do not wait until you are ready to file before chasing your marriage certificate. If you were married interstate or overseas, obtaining a replacement can take several weeks. Start that process early.
What is the difference between separation and divorce?
Separation is the moment your marriage effectively ends in practice. You do not need to file anything, sign anything or tell anyone official. You separate when at least one of you decides the relationship is over and acts on that.
Divorce is the legal process that formally dissolves the marriage. It is a court order. Until that order is made and becomes final, you are still legally married, even if you have been separated for years and have already divided your property.
This distinction matters for a few practical reasons. You cannot remarry until your divorce is final. Your property settlement and spousal maintenance rights are affected by different deadlines depending on whether you are calculating from the date of separation or the date the divorce order becomes final. And some financial and estate planning decisions are affected by your legal marital status.
The other thing worth knowing: separation and divorce are both legally separate from parenting arrangements and property settlement. You can be divorced and still have an unresolved property dispute. You can have consent parenting orders in place years before you even think about filing for divorce. These processes run on parallel tracks, and they only intersect at a few specific points.
Key Point: Many people assume divorce is the finish line. It is closer to the starting gun for time-limited processes around property and maintenance. Getting the sequence right matters.
Do I have to be separated for 12 months before I can apply?
Yes. The 12-month separation period is a hard requirement. You cannot apply before that period has elapsed.
The period is calculated from the date of separation. One practical thing to understand: the law requires 12 months and one day. If you are not certain of your exact separation date, it is worth identifying it carefully before you file, because if you apply too early, the application will not succeed.
There is one scenario that trips people up. If you separate, then reconcile and try again for a period of less than three months, that reconciliation attempt does not necessarily reset the clock entirely. The time you were separated before the reconciliation can be counted, as long as the total back-together period was less than three months. If the reconciliation lasted longer than that, you are starting the 12-month period again from scratch.
The first thing we tell someone who has been separated for a while and thinks they can just file tomorrow is this: confirm your separation date before you do anything else. It sounds obvious. But people sometimes find they separated slightly later than they remembered, or that a brief reconciliation affects their calculation. Getting that date wrong wastes time and money.
Expert Tip: Write down what you remember about the date of separation and any events around that time. Text messages, emails or notes from that period can be useful if the date is ever questioned, particularly in a sole application.
What if we are still living together?
Separation under one roof is legally recognised in Australia. You can be separated even if you are still sharing the same house. Financial pressures, the children’s schooling, the housing market, many couples stay under one roof after separation for entirely practical reasons.
What the court looks for is evidence that the nature of the relationship changed. That might include sleeping in separate bedrooms, no longer sharing finances, telling family and friends the relationship was over, one of you ceasing to cook or clean for the other, or any combination of these things.
If you are in a sole application and your separation was entirely under one roof, you will need to file an affidavit explaining the circumstances. You may also need a supporting affidavit from someone else, a family member, a friend, anyone who can confirm that the relationship had genuinely changed. This is not about proving fault. It is simply about giving the court enough information to satisfy the 12-month requirement.
If you are doing a joint application and you both agree on the separation date and the circumstances, the process is simpler, because both of you are confirming the same facts.
Key Point: Separation under one roof is common and it is legally workable. But it does require a little more care in how you document and present your circumstances. Do not assume it will be waved through without supporting evidence.
Do I need my ex to agree, or can I apply on my own?
You do not need your ex’s agreement or cooperation to get a divorce. If they refuse to engage, go silent, or actively oppose the process, that does not prevent you from obtaining a divorce order.
This is the difference between a joint application and a sole application.
A joint application is made by both of you together. You complete the form together, both sign it, and you submit it as a single application. Neither party needs to be formally served, because you are both already parties to it. If neither of you needs to attend a hearing, the matter is dealt with on the papers.
A sole application is made by one of you alone. The other party is the respondent. Once you file, the application must be formally served on them. That means they receive a copy of the application and the hearing date. They do not have to agree with it, but they must be properly notified. Service must happen at least 28 days before the hearing date if the respondent is in Australia, or at least 42 days before if they are overseas.
If your ex refuses to accept service, avoids being served, or cannot be located, there are court processes available. You can apply for substituted service, which allows service to happen in an alternative way, such as by email or through a relative. In cases where the person genuinely cannot be found after real attempts have been made, the court can dispense with service altogether. These situations are not common, but they are manageable with the right advice.
Expert Tip: Service is one of the most common sources of delay in a sole application. If you have any reason to think your ex will be difficult to serve, plan for it early. Do not leave it to the last minute before the hearing date.
How do I apply for a divorce?
The application is made through the Commonwealth Courts Portal, which is the federal government’s online filing system for the Federal Circuit and Family Court of Australia.
Here is how the process works in practice.
You create an account on the Commonwealth Courts Portal and complete the Application for Divorce. The form asks for information about the marriage, the separation date, any children under 18, and how service will be arranged in a sole application.
You then upload your supporting documents. At minimum you need a copy of your marriage certificate and, if the certificate is not in English, a certified translation. You also need proof of Australian citizenship or residency if that is not apparent from the marriage certificate.
Once the application is filed and the filing fee is paid, the court allocates a hearing date. In many straightforward matters, the divorce is granted without either party needing to be in the room. If there are children under 18, the court will want to be satisfied that proper arrangements are in place for them, but attendance at the hearing is not required even in those cases. If there are service issues, or if the respondent in a sole application wishes to appear and raise a matter, attendance may be needed.
The divorce order is made at the hearing. It does not take effect immediately. It becomes final one month and one day after it is made.
Key Point: The Commonwealth Courts Portal allows you to track your application’s progress. Once your hearing date is set, note it carefully. If you are the sole applicant, service must be completed and proof of service filed before the hearing.
What documents do I need?
The core documents for a divorce application are these:
- Your original marriage certificate, or a certified copy. If it is not in English, a certified translation.
- Proof of Australian citizenship or residency, if required. A passport, birth certificate or citizenship certificate usually covers this.
- If separation was under one roof, an affidavit explaining the circumstances, and usually a supporting affidavit from a third party.
- For a sole application, proof of service once the respondent has been served.
You do not need to provide evidence of your property, your children’s arrangements, or any financial matters. The divorce application is deliberately narrow. It is not the place where those issues are resolved.
Expert Tip: Keep digital copies of every document you submit. If a document is queried or needs to be refiled, having your own copies saves significant time.
How much does it cost to apply for a divorce?
There is a court filing fee to lodge a divorce application. That fee is set by the federal government and is reviewed periodically. We do not publish a specific figure here because fees change and the current amount should be confirmed directly with the Commonwealth Courts Portal or with us before you file.
A reduced fee is available in certain circumstances, including if you hold a health care card, a pensioner concession card, or if paying the full fee would cause you financial hardship. The application for a fee reduction is made at the same time as your divorce application.
Legal fees are a separate matter. If you choose to file the application yourself without legal help, your costs are largely limited to the court fee. If you engage us to prepare and file the application for you, our fee covers the preparation of the form, drafting any required affidavits, and managing service and the hearing. For a straightforward application, those costs are generally modest.
Where legal fees escalate is when the matter becomes complicated, through contested service, a respondent who seeks to appear at the hearing, or circumstances that require additional affidavit evidence. That is why early advice about which type of application suits your situation can actually reduce your overall costs.
Key Point: The court filing fee is the one unavoidable cost. Legal fees depend entirely on the complexity of your situation and how much of the process you want handled for you. A brief initial conversation with us will give you a clear sense of what to expect.
How long will a divorce take?
From the date you file, most straightforward applications reach a hearing within three to four months. After the hearing, the order becomes final after a further month and one day.
What creates delay? The most common culprits are service problems in sole applications, administrative issues with documents, and matters that need to be relisted because something was not in order at the first hearing. These delays are almost always avoidable with proper preparation.
The other thing people underestimate is the time before they even file. If you are waiting on a replacement marriage certificate, or if you need to gather evidence about separation under one roof, or if you are not yet at 12 months, that waiting period is not dead time. It is the right time to be sorting out parenting arrangements and starting to think about property.
Expert Tip: Use the time before you can file productively. Getting parenting arrangements formalised and property negotiations started before the divorce is final gives you more options, not fewer.
What happens with the children when you divorce?
The divorce order itself says nothing about your children. It does not decide where they live, who makes decisions about their education or health, or how much time they spend with each parent. Those questions are dealt with entirely separately.
In Australia, the framework is built around parental responsibility and arrangements for children to live with or spend time with each parent. The court’s starting point is that both parents share parental responsibility equally, meaning major long-term decisions about the children are made jointly. Where that arrangement does not serve the children’s best interests, orders can be tailored to the circumstances.
If you and your ex can agree on arrangements, those can be formalised in a parenting plan or in consent orders filed with the Federal Circuit and Family Court of Australia. If you cannot agree, the court can make parenting orders after hearing from both parties.
The most common misconception we see is this: people file for divorce thinking it will force their ex to the table about the children. It does not. The divorce order and the parenting process are independent of each other. If your main concern right now is the children, that issue deserves its own attention, separate from the divorce application.
Key Point: Do not put off parenting arrangements on the assumption that the divorce will prompt a resolution. Start those conversations, and if necessary those proceedings, on their own timeline.
Will the court ask your children to choose?
No. The court does not ask children to choose between parents or to state a preference about where they live. The child’s voice can be relevant to parenting proceedings, but it is brought into the process in structured ways, through a family consultant’s report or, in some cases, through an Independent Children’s Lawyer appointed to represent the child’s interests. Children are not put in the position of choosing or appearing in court.
The question of what the children want is one factor among many that the court considers. It is weighted according to the child’s age and maturity. It is never the only factor and it does not override the court’s assessment of what is in the child’s best interests overall.
Expert Tip: If your children are expressing strong views about arrangements, that is worth raising with a family lawyer. There are appropriate ways to ensure those views are considered without putting children in the middle of adult conflict.
Are you entitled to a property settlement or spousal maintenance?
The divorce order does not divide your property. Property settlement is a completely separate legal process.
The starting point in property settlement is identifying what you both own and owe, including superannuation. From there, the court or the parties consider contributions made during the relationship, both financial and non-financial, and each person’s future needs. The outcome is not a formula and there is no automatic entitlement to a 50-50 split. Every matter is assessed on its own facts.
Spousal maintenance is also separate. It applies where one party cannot meet their own reasonable expenses and the other party has the capacity to contribute. It is not automatically available and it is not permanent in most cases, but it is a real option in the right circumstances.
What you absolutely must know is this: once your divorce order is final, you have 12 months to start property settlement proceedings. If you miss that deadline, you may need the court’s permission to proceed, and that is not guaranteed. This is one of the most consequential time limits in family law and it catches people out more often than you would expect.
Key Point: Do not leave property and superannuation until after the divorce. The 12-month deadline runs from when the divorce order becomes final, not from when you separate. Start the conversation with a lawyer before you file.
Do you have to sort out property before filing for divorce?
No, you do not have to resolve property before you file for divorce. The two processes are legally independent and can run simultaneously.
What you do need to be aware of is the deadline that divorce creates. Once that order is final, the clock starts. If your property settlement is still unresolved at that point, you need to either reach agreement quickly or file proceedings before the 12 months is up.
The practical advice we give people over and over is this: start property discussions early, even if they are informal. If you and your ex can reach agreement, we can formalise it in consent orders that are filed with the court. If you cannot agree, knowing that early gives you time to start proceedings without the pressure of an expiring deadline.
Expert Tip: A consent order for property settlement can often be obtained without a court hearing. Getting one in place before your divorce is final removes the deadline risk entirely.
Will you have to appear in court?
In most straightforward divorce applications, no. The Federal Circuit and Family Court of Australia can and regularly does grant divorce orders without either party appearing. This is true whether or not there are children under 18. Attendance is not required regardless of the circumstances, provided there are no unresolved service issues or other matters the court needs to hear about directly.
If there is a service problem, if the respondent wishes to raise a matter at the hearing, or if the application has some procedural issue that cannot be resolved on the papers, a hearing may be needed and attendance may be required. But these situations are the exception, not the rule.
If you do attend, divorce hearings are typically brief. They are not adversarial proceedings in the way people imagine. There is no cross-examination, no argument about who was at fault, no airing of the relationship’s history. The court is simply confirming that the requirements have been met.
Key Point: Fear of a court appearance stops some people from filing. In the vast majority of cases, you will not need to be there in person. The process is quieter than most people expect.
What if your ex refuses to engage, has disappeared or is overseas?
A sole divorce application does not require your ex’s cooperation or consent. Their refusal to engage does not prevent the divorce.
The one thing they are entitled to is proper service of the application. If they are in Australia, service must happen at least 28 days before the hearing. If they are overseas, that extends to 42 days.
If they actively avoid being served, you can apply to the court for substituted service, which allows service to be effected in a different way. If they cannot be located after genuine and documented attempts, the court can dispense with service. These applications require supporting evidence, and they add some time to the process, but they are not rare situations and there is a clear pathway through them.
If your ex is overseas, service can be arranged through a process server in the relevant country, or in some cases through other means depending on the country. This is one area where getting legal help early saves a significant amount of time and frustration.
Expert Tip: If you do not know where your ex is, document every step you take to find them. The court needs to see evidence of genuine attempts at service before it will consider dispensing with it.
Is family violence relevant to your divorce application?
Yes, in a practical sense. The divorce application itself is not about conduct or fault. But if you are leaving a situation involving family violence, there are practical aspects of the legal process that need to be handled carefully.
If you are concerned about your safety, your address can be kept confidential from the court file. Service of the application on your ex can be arranged through a third party rather than directly, so you do not have to make personal contact. If there is an existing domestic violence order, that is relevant to how some aspects of the process are managed.
Parenting and property matters involving family violence require specific attention. The court takes family violence very seriously in parenting proceedings, and the arrangements for children in those circumstances are assessed with safety as the primary consideration.
If you are in a harmful situation, please contact 1800RESPECT on 1800 737 732 or reach out to Legal Aid Queensland. These services can provide immediate support and connect you with the right legal and safety resources. You do not have to be in immediate danger to call.
Key Point: The legal process can be adapted around safety concerns. You do not have to make direct contact with your ex to obtain a divorce. Tell your lawyer your situation from the start so the right protections are built in.
Can you keep things amicable and avoid a big court fight?
Yes, and in most cases you can.
The divorce application itself is almost never contested. A respondent can technically appear and raise a matter, but the court will not refuse a divorce simply because one party does not want it. If you have been separated for 12 months, irretrievable breakdown is established.
The bigger question is about children and property. Those matters genuinely can be contested, and they genuinely can become expensive. But they do not have to be. Mediation, collaborative negotiation and consent orders are all paths to resolution that keep you out of a full hearing. Many couples, even those who are not on the best of terms, reach agreement on these matters with legal help and without the court ever making a decision for them.
The honest reality check we give people at the start is this: the more you litigate, the more the process costs and the longer it takes. That is not always avoidable. But it is always worth trying the alternatives first. Going to a contested hearing should be the last resort, not the default.
If you and your ex are in a position to work through things collaboratively, even with lawyers involved on both sides, that approach almost always produces better outcomes, faster and at lower cost, than fighting it out in court.
Expert Tip: If you are considering whether to negotiate or litigate, think about proportionality. Legal costs in a contested matter can sometimes approach or exceed the value of what is being disputed. That is a conversation worth having with your lawyer before things escalate.
Do you need a lawyer to apply for divorce?
You do not legally need a lawyer to apply for divorce. The Commonwealth Courts Portal is designed for self-represented applicants and many people file their own application successfully.
Where legal help adds real value is not just in the filing itself. It is in understanding what the divorce does and does not resolve, making sure the application is correctly prepared and served, knowing when a complication requires a different approach, and ensuring you are not inadvertently starting a clock on a deadline you did not know about.
For a simple, joint application between two people with no property disputes, no parenting issues and a clear separation date, doing it yourself is a legitimate option. But most separations are not that clean. Most involve some combination of children, a shared home, superannuation, debts or a history that makes the full picture more complicated than the divorce form suggests.
The first call to us does not commit you to anything. It gives you a clear picture of where you stand, what the process looks like for your specific situation, and what it is likely to cost. That picture is almost always more reassuring than the one people have in their heads when they first call.
Key Point: The filing is the easy part. It is what happens around the filing, and what you do in the months that follow, that determines whether the process is smooth or painful. Advice at the start is almost always cheaper than fixing problems later.
What will working with C + K Family Lawyers look like?
When you first contact us, we start with a conversation about your situation. Not a form, not a questionnaire sent to you at midnight. A real conversation where you tell us what is going on and we tell you honestly what your options are.
From there, if you engage us for the divorce application, we handle the preparation of the application and any supporting affidavits, manage service arrangements for sole applications, liaise with the court, and keep you informed at each step. You do not need to be across the procedural detail. That is our job.
If your situation also involves children or property, we are straight with you about what each of those processes involves, what it is likely to cost, and what we think the realistic outcomes look like. We do not create conflict where there does not need to be any. And we do not push you toward litigation when there is a smarter path available.
Our clients on the Gold Coast and in Brisbane tell us that what they value most is knowing what happens next. Not being kept in the dark. Not being handed to a junior team member. Getting a clear, honest picture from people who have done this hundreds of times.
Expert Tip: If you are not sure whether you are ready to engage a lawyer, come in anyway. An initial conversation costs nothing in goodwill and usually clarifies things considerably.
What are your next steps if you are ready, or not quite ready?
If you are ready to apply, the next step is confirming your separation date, getting your marriage certificate in order, and deciding whether you are doing a joint or sole application. Then call us before you file. A brief conversation at that point can prevent the most common mistakes.
If you are not quite ready, because you have not reached 12 months yet, or because you are not sure what your parenting and property situation looks like, this is still the right time to get advice. Use the waiting period to understand your rights, start parenting conversations, and get a clear picture of your financial position.
If you are in a difficult or unsafe situation, please reach out now. You do not need to have everything worked out before you make contact. We will help you understand your options and point you toward the right support.
Separation is a hard time regardless of how amicable things are. But there is a structured path through it, and you do not have to find it alone.
If you would like to talk through your situation confidentially and without obligation, contact the C + K Family Lawyers team. We are here.
Frequently asked questions
Can I get divorced if my ex does not agree? Yes. Divorce in Australia does not require both parties to consent. If you have been separated for at least 12 months and meet the residency requirements, you can file a sole application. Your ex will be served with the application and will have the opportunity to appear at the hearing, but they cannot prevent the divorce simply by objecting.
Does divorce automatically deal with our house and superannuation? No. Property settlement, including superannuation, is a completely separate legal process from divorce. You need to negotiate or litigate that separately. Once your divorce order is final, you have 12 months to start proceedings or reach a formal agreement. Do not miss that deadline.
What if I was married overseas? Your overseas marriage is recognised in Australia provided it was valid where it took place. You will need a certified copy of your overseas marriage certificate, with a certified translation if it is not in English. If you cannot obtain the certificate, speak with a lawyer before you file about what alternatives may be available.
Do I have to attend a hearing for my divorce? No. Attendance is not required for a divorce hearing, regardless of whether there are children under 18. Most straightforward applications are dealt with by the court on the papers. If there is a service issue or another matter that needs to be addressed in person, the court will let you know.
How long after the hearing does the divorce become final? The divorce order takes effect one month and one day after it is made. You are not legally divorced on the day of the hearing. Until the order becomes final, you remain legally married.
This article is general information only and is not legal advice. Family law outcomes depend on your individual circumstances. For advice about your situation, speak with a qualified family lawyer.
About the Author
Christopher (Chris) Jones is the Principal Lawyer and co-founder of CK Family Lawyers, a Queensland family law firm. Chris advises on divorce, property settlement, parenting arrangements, binding financial agreements, mediation and domestic violence matters. After working in legal environments where clients felt depersonalised and lost in jargon, he co-founded the firm with Krystina Jones on the belief that people deserve family lawyers who genuinely care, and he works directly with his clients throughout their matters.
