Understanding the Basics of Divorce Law

Going through a divorce is a difficult and emotional time in someone's life. However, understanding the basics of divorce law and receiving the advice of an experienced family lawyer can help make the process manageable and timely.

Married couples can apply for a divorce in Australia if the marriage has broken down irretrievably. It is the official, and legal ending of a marriage and as such carries many important financial, personal and legal ramifications for you and your spouse. The following steps from KWS Legal are a basic overview of the important steps involved in the process of divorce.


In order to apply for a divorce, you and your spouse must have been separated for 12 months.

If you and your spouse have separated but remained living under the same roof for any period, you should seek legal advice as to the additional requirements that you must meet.

It is possible to get a divorce if you live in the same house after separation but lead separate lives. An assessment of whether you and your spouse lead separate lives will include considerations of whether you sleep together, engage in sexual activities, share money and bank accounts and whether your friends and family consider you as separated.


Applying for a divorce

Former couples can apply for a divorce together (joint application) or you may wish to apply for a divorce on your own (sole application). Family law courts have special rules about the service of divorce documents, so it is advisable to seek the advice and guidance of an expert in family law.

You will need to complete an Application for Divorce form, which can be downloaded from downloaded from the Federal Circuit Court of Australia website. When this application is filed, you will be charged a Court filing fee. It is important to note that it may take several months from the time you file for divorce to the actual date of divorce.

The divorce hearing

If you have children under 18 and you made the application for divorce by yourself, you will be required to attend a divorce hearing. These are generally brief proceedings where the court will need to be satisfied that;

  • you and your spouse have been separated for 12 months
  • consideration has been given to the arrangements for the children including how often they spend time with the other parent and how they are financially supported.

If the court is satisfied that the grounds for divorce have been established, the Court will grant the divorce. The divorce order will become final one month and one day from the date of the hearing, and a Divorce Order will be sent to you and your former spouse.

Property settlement and children's arrangements

It is important to note that a successful divorce application does not include the determination of issues relating to children or property, however the division of property must be done within 12 months of the date of the divorce. If you cannot resolve your property issues and need a court to decide, you will be required to file a separate application to your divorce to resolve the dispute.

Understanding the basics of divorce law, and going through the process with the guidance of an experienced family lawyer can ensure that you follow the process according to the law and in the most timely and efficient manner available for you and your former spouse

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