• There is no requirement to register your separation. There are no forms to fill in and you do not need to apply to the court to separate. 
• Married couples must be separated for 12 months before they can apply for a divorce.
• It is possible to be legally separated but “living under the same roof”. 
• It is a still a good idea to record the specific date of your decision to separate and advised your ex-partner. Also record how you told your ex-partner and where.
• This is particularly important if the other person may not agree with your date down the track. It is wise to set out the date of separation in writing by sending an email to your ex-partner confirming that you are separated and keep it a copy.
• If there is a dispute about when you separated then it will be up to the court to decide when this occurred. To do this the court will look at the evidence from you, your ex-partner and possibly from other witnesses.

• The date of separation is important whether you were married or in a de-facto relationship. The date of separation impacts upon a number of things including:

1. when you can file for a divorce;
2. the time in which you can claim property settlement; or 
3. the time from which your spousal maintenance and possibly child support obligations start to run.

• If the date of separation is disputed then this is a fact that will need to be proved in court. The court will consider the evidence before it makes a decision. 

• We can help you through the process. 
• We first check that you meet the legal requirements for divorce. 
• We prepare the application, affidavits (sworn statements) and other documents in support of your application before filing them in court.
• If there are children under 18 years of age you need to attend court on your hearing date however this is usually a short hearing to confirm that the necessary information is all before the court. 
• The court once satisfied that you need the requirements will then grant your divorce on a provisional basis.
• On month and a day later your divorce becomes absolute or final.

• If we prepare a joint application on behalf of you and your ex-partner we do not need to serve the papers on your ex-partner however we may have to demonstrate that both parties know the date of hearing.
• If we are making a sole application for you then we are required to serve the divorce papers on your ex-partner. 
• Court rules specify how a divorce application must be served on a party including timeframes about when you must do this.
• We will then need to provide the court with proof of service. This is done in an affidavit (a written document sworn in front of a qualified witness). We can serve your ex-partner by post or by hand (personal service).
• We ask your ex-partner to sign an Acknowledgement of Service document and return it to us. 
• Where necessary we will engage a professional process server to formally serve your ex-partner in person.

• Yes, you can apply for a divorce if you have been married for less than 2 years however you and your ex-partner must first go to a counsellor to discuss the possibility of reconciliation. The counsellor must be an approved counsellor who is authorised to issue the relevant certificate that will need to be provided to the court as part of your application for divorce. 
• The time you have been married is calculated from the date on your marriage certificate, not the date of cohabitation.

• Yes, you can oppose an application for divorce however there are limited grounds for doing so and most applications fail.
• In Australian divorce law is a ‘no fault’ system of law. This means that the court is not interested in why the relationship broke down or whether or not both people want a divorce. It will simply consider the application against the requirements for granting a divorce under the law. 
• The process of opposing a divorce application involves filing a ‘response’ to the divorce application. You need to provide reason for opposing the divorce (e.g. that you were not separated for 12 months by the time of the application) and providing evidence in support of your position. 
• Both you and your ex-partner will need to attend court on the hearing date with or without legal representation.
• The court will then consider the evidence of both parties at the hearing. It may make an order on this day or it may allocate more time on another day to consider the case. 
• We can advise you on the strength of your case and the factors the court will take into account when deciding whether to grant the order for divorce.

• You can apply for a divorce in Australia even if you were married overseas. There are some additional hoops the court requires you to jump through.
• The major difference in these situations is ensuring that proof of your marriage is acceptable to the court and in the correct form. 
• If it is written in a language other than English then we will arrange to have your overseas marriage certificate translated into English.
• The translator will need to sign an affidavit (sworn statement):

1. detailing their qualifications in translation; and
2. confirming that the document is an accurate translation of the original. 

• Both these documents will need to be included in your divorce application.

• The Federal Circuit Court of Australia deals with all divorce cases in Australia. 
• There are divorce list days when the court deals with a large number of divorce applications.
• Usually a registrar (as distinct from a judge) will deal with your divorce application. 

• Formalising your separation with a divorce is an important task that needs to be completed if you wish to remarry in the future.
• You also need to make decisions about:

1. children;
2. property settlement (time limits apply)
3. finances including income and expenses;
4. assets and liabilities; and
5. living arrangements.

• We can assist you in seeking to negotiate an agreement about these issues without needing to go to court. 
• If you cannot agree then we can prepare an appropriate application can be made to the court to finalise arrangements about these matters. You will need to attend specialised mediation known as family dispute resolution before your case can go to court on a parenting issue.
• If you and your ex-partner reach an agreement it is wise to have the terms formally documented and provided to the court in the form of consent orders. Usually neither party needs to attend court on a consent orders application.

• If you were married you must apply for a property settlement within 12 months from the date that the divorce takes effect.
• If you were in a de-facto relationship you must apply for a property settlement within 2 years from the date of separation.
• If you are outside these timeframes we can advise you on some special circumstances when you can still apply for a property settlement.

• If you disagree with the order for divorce you can apply for a review before the divorce is finalised one month and one day later. You cannot apply for a review after the divorce has become final. 
• There is a general right of appeal against orders made by the court. If you want to appeal the decision of the court you should obtain legal advice as soon as possible to ensure you have grounds for appeal.
• It is important that you understand the timeframes, deadlines and are advised of the strength of your application for review or appeal.

Question

I have been cohabiting in a relationship with my partner for more than 1 year and we have a child together. Are we in a de-facto relationship? I also heard that different elements of the relationship must be proved before the law recognises your de-facto relationship.

Answer

• Sometimes there is a dispute about whether or not you are in a de-facto relationship with another person but having a child together and living together is strong evidence of a de facto relationship.
• The court will consider a number of different circumstances to decide if a de-facto relationship exists including:

1. the amount of time spent together in a relationship;
2. if you are living together as a couple;
3. if you share finances or if one person is financially supported by the other;
4. if you are in an intimate or sexual relationship;
5. if you have children together; and
6. if you own property together.

• Each case is different and will turn on the particular facts of the case.

Question

My de-facto partner and I have decided to separate after 7 years. During the course of our relationship I looked after the household and our 2 children while my partner worked. I am concerned that after our separation I won’t be able to get a property settlement. 

Answer

• If you are in a de-facto relationship you can apply for a property settlement or spousal maintenance after you separate.
• The usual time limit for applying for a property settlement is two years after separation from your de facto partner.
• We can assist you in seeking to negotiate a settlement with your ex-partner or to file an application in court if no agreement can be reached.

Question

My partner and I ended our 3-year de-facto relationship amicably and we decided it was best if we agreed on how to divide our property and are happy with the proposed distribution. Do we still need to go to court?

Answer

• If you can agree then there is no need to go to court whether you were in a de-facto relationship or if you were married, provided the court is satisfied that the property settlement is fair in all the circumstances. We can assist by preparing consent orders for the court to make and the accompanying application. 
• You can also formalise your agreement by a Binding Financial Agreement (BFA). You can see our separate page on BFAs with its own FAQ and Q&A at this link.
• Before or after you have agreed, you may still want to get some legal advice to make sure your rights are protected and that the settlement is fair to you.

Question

I have been married for 12 years and recently separated from my wife. I have tried to get back together with my wife but she wants to file for divorce. I don’t want to get a divorce. 

Answer

• Australian divorce law is a ‘no fault’ system of law. This means that the court is not interested in why the relationship broke down or whether or not both people want a divorce. It will simply consider the application to determine that the relationship has broken down irretrievably and there has been separation of at least 12 months (including ‘under the same roof’).
• In nearly all cases the court will grant a divorce if all the requirements have been satisfied and if the correct procedural steps for making an application have been followed, even if one party does not want a divorce.

Question

Ever since my partner and I separated we both have been living in the same house. Due to our work commitments we decided that one of us will move out after our divorce is finalised. How can I prove our separation to the court? 

Answer

• Judges understand that this situation often occurs however you will still need to provide evidence of the date that you separated.
• If the date of separation is in dispute you may need to provide additional evidence about your circumstances. 
• The evidence a court will consider to assess when you separated includes whether and when:

1. sleeping arrangements changed, such as sleeping in separate rooms;
2. intimacy ended (or became only an aberration) from the date of separation;
3. socialising as a couple ended and what your family and friends knew;
4. finances and bank accounts separated; and
5. responsibility for domestic duties were taken on separately by each individual in the household.

Question

I have had a terrible separation and am currently living in the same house as my ex-partner. I have a young child with me and have no other place to go. My ex-partner wants me to move out of the house. I want him to move out. What can I do? 

Answer

• Both of you have a right to live in the house regardless of whose name is on the title or rental agreement.
• It is best to try and come to some agreement that you are both ok with. If this is not possible you can apply to the court for a sole occupancy order. This is an order that one person can live in the house without the other. We can advise on the strength of your case and what sorts of things the court will consider when it is making a decision, and assist you to make the application in court and appear on your behalf.
• If you fear for your safety or your children’s safety it is important that you take steps to be safe. You may need to go to a safe house or reach out to support services. This will not affect your rights and we can still advise you on applying for a sole occupancy order. 
• If there is family violence and you are in NSW you may also wish to investigate whether the state government’s Staying Home Leaving Violence program can assist you: http://www.community.nsw.gov.au/docs_menu/parents_carers_and_families/domestic_and_family_violence/stayhome_leaveviolence.html.

Question

I tried to give the divorce documents to my ex-partner but he refused to accept them. He told me that he will not accept them under any circumstances and that we can never get divorced. I am getting stressed out. Can I do something?  

Answer

• The divorce documents that you have to serve include:

1. a copy of your Application for Divorce that has been sealed (stamped) by the court;
2. a copy of the court’s ‘Marriage, Families and Separation’ brochure; and
3. any other documents that you have filed with the court other than the copy of your marriage certificate which you do not need to serve.

• In your situation you cannot send these documents by post as it seems very unlikely that your ex-husband would fill out and return the ‘Acknowledgment of Service’ document to you. The court will need this to prove that he received the documents.
• The documents need to be served at least 28 days before your court date if your ex-husband is in Australia. If he is overseas the documents will need to be served at least 42 days before the court date.
• The Family Court will not allow you to serve the documents on your ex-husband personally. This is:

1. partly due to the increased likelihood of family violence around the time of separation and divorce; and 
2. partly to ensure that the documents are delivered and your ex-husband has a fair opportunity to respond.

• You will need to ask someone who is over the age of 18 to serve the documents and prepare an affidavit of service or obtain a signed Acknowledgment of Service. This can be:

1. a family member;
2. a friend; or
3. a professional process server.

• We can assist you through all these processes.

Question

We have filed a joint application for divorce. We have been separated for 3 years already. We both agree and want it over with. I want to re-marry. Can I just go ahead and do this?

Answer

• No. You cannot remarry legally until your divorce has been finalised. You need to apply for a divorce, wait for the court to make the Divorce Order. Then you have to wait a further one month and one day for it to take effect and you will be free to remarry.
• In all, it usually takes a few months for a divorce application to be granted and finalised.
• You will need to provide a sealed Divorce Order as part of your application to remarry

Question

I have had a terrible separation and don’t really want to see my ex-husband again in court. Is it necessary to go to a divorce hearing? 

Answer

• If you do not want to attend court then you need to request your case be heard in your absence. The court may dismiss your application if you have not requested this and you are absent from the hearing. 
• There are some cases where you must attend court:

1. if it is a sole application for divorce and you have children under the age of 18 years; 
2. if you filed a response to your ex partners application for divorce; or
3. if your ex-partner has filed a response to your application for divorce.

• We can assist you through this process.

Question

I have never been inside a court and am very nervous about my divorce hearing. What should I do? 

Answer

• It is a good idea to get to court at least 20 minutes earlier than the time written on your court papers.
• We will advise you about which courtroom you are in and what your case number is. We will let  the court staff know you have arrived and try to get an indication of the time your application will be heard. 
• When your case is called you go into court. We will sit at the bar table and represent you and you can sit in the chairs behind. Usually we will speak on your behalf and you will not need to say anything.

Question

I have a divorce hearing coming up and am nervous about what to expect. Do I have to prepare myself for questioning and will I be asked details about my marriage? 

Answer

• Usually divorce applications are dealt with by a registrar rather than a judge.
• The court is mainly concerned that all the requirements for divorce are present. If there are children then it will want information about how the children are being cared for such as where they are living, going to school and their health.
• Most of these requirements will have been addressed in your written application, supporting documents and any response that has been filed.
• The registrar may ask some questions of us about your circumstances. 
• The court will not be interested in the details about the breakdown of the relationship or opinions about who is to blame.
• It is usually quite a short hearing lasting about 10 minutes. Once the registrar has considered the application and evidence he or she will either:

1. make an order for divorce;
2. dismiss the application; or 
3. adjourn it.

• If it is dismissed or adjourned the registrar will tell you the reasons the application is being dismissed or adjourned.

Question

I was really shocked and upset to receive a Divorce Order in the post today. I did not sign the documents and think my ex-partner forged the signatures. Can I do anything? 

Answer

• It is illegal to forge somebody else’s signature. If your signature was forged as part of the divorce application you can apply to have the court cancel the order on the basis there has been a ‘miscarriage of justice’. This means that something unjust, improper or illegal has occurred that has resulted in an unfair outcome.
• If this happens then you can make an application for the Divorce Order to be discharged.
• The court may then make an order for another divorce hearing to give you the opportunity to attend either in person or by your lawyer to explain what occurred.