The requirements for a Divorce in Australia

 Divorce is a significant life event and navigating the legal process can be complex. Whether you are seeking a divorce or need expert advice on family law, it is important to understand the key requirements, especially regarding the concept of separation. In this article, we will break down the legalities surrounding divorce in NSW, with a focus on the necessary steps for separation.

Other considerations in Divorce

Divorce does not automatically divide property. The division of property will be decided separately and can be finalised before you are divorced. Keeping in mind that if you receive a divorce order, then you have a 12 month time limit running from the date of the divorce to bring any claim for family law property orders. You should also give consideration to the need to severe any property interests while you are negotiating division of your joint property, as well as the preparation of a new Will. When children are involved, arrangements for the children including child support are a separate issue to divorce also.  

A qualified family lawyer will help you understand your rights, guide you through the legal process, and advocate for your interests, whether it involves divorce, child custody, property division, or other family-related legal matters.

For expert legal advice and support, contact Hanna Lawyers to speak to an experienced wollongong family lawyer to guide you through the family law divorce process with confidence.

Requirements for Divorce 

1.     Proof of marriage

You need to be married to be able to seek a divorce, being a legal dissolution of marriage. You will be requirement to provide evidence of the marriage to the Court i.e. marriage certificate. The Court will accept a copy of the certificate issued by the Births, Deaths and Marriages Registry of the State or Territory where you were married. However, the Court may also accept a religious certificate able to show the spouses’ full names, date, and place of marriage. If you were married overseas, the Court will usually accept a copy of either the government or religious certificate. If your marriage certificate is not in English, you need to provide the Court an English translation of the certificate alongside an affidavit from the translator confirming the translation as correct. 

2.    Married for at least 2 Years

The Family Law Amendment Act which comes into force in June 2025, removes the requirement for couples married less than two years to seek leave from the court before filing for divorce. Previously, if your marriage lasted less than two years, you would need to go through counselling and get approval from the court before you can divorce.

3.    Jurisdiction

You or your spouse must be an Australian citizen, permanent resident or you must have been living in Australia for at least 12 months before applying for divorce.

You can apply for Divorce in Australia if you and your spouse are not citizens or permanent residents, but you need to provide the Court a copy of your Visa Entitlement Verification Check to show that you or your spouse have been living in Australia for at least 12 months. 

4.    Living Separately and Apart for 12 Months

You and your spouse must have been separated  for at least 12 months. You do not have to live in different homes. You can still live under the same roof, but you must be living separate lives (e.g., no shared bedroom, separate finances, no romantic relationship). You must prove this separation to the court. We discuss this requirement further below.

5.    Service

Where you are not applying jointly with your spouse for Divorce, you must prove to the Court that you have properly serve the Application for Divorce on your spouse.

If applying solely for a Divorce, you need to serve various divorce documents on your spouse by post including an Acknowledgement of Service. If the signed Acknowledgement of Service is not returned to you, or you think your spouse will not respond at all, you can serve the documents by hand. You cannot serve the documents on your spouse yourself. Most people applying for a Divorce engage a process server – a third-party organisation who sends an agent to serve documents on your behalf. If you do not know where your spouse is, and you have made all attempts you can to find them, you can apply for Substituted Service. If applying jointly, you do not need to serve the Divorce Application on your spouse.

Also, if you have children under 18, the court will also request confirmation that you have made appropriate arrangements for their care and welfare. This does not mean you need to have parenting orders in place before applying for divorce, but the court needs to know that the children’s needs have been considered.

What Does "Living Separately and Apart" Mean?

One of the fundamental requirements for obtaining a divorce in Australia is proving that you and your spouse have been living "separately and apart" for at least 12 months. This period of separation is crucial in the eyes of the law, as it demonstrates that the relationship has broken down irretrievably.

Living separately and apart means that both parties have ceased to live together as a married couple, even if they still occupy the same residence. However, it’s important to note that living in the same home doesn’t necessarily mean you are living together as a couple. You can still meet the 12-month separation requirement if you maintain separate bedrooms, do not engage in marital activities, are emotionally and physically distant from each other, have separate finances and attend social events separately.

In this modern economic climate, it is not uncommon that you will find parties that will continue to cohabit under the same roof following separation, where it is safe to do so. This decision is usually made jointly and until a division of property is finalised, to mitigate the financial hardship that is associated with having one party relocate, especially where the family home is encumbered in both parties names and neither party can afford to maintain the repayments on the home by themselves.

Also, separation does not end a couple’s parenting responsibilities. For couples with children, it may feel less disruptive to the children for the couple to remain in the same household temporarily while navigating separation.  



You can find more information about being separated under the same roof on the Court website.  If you find yourself overwhelmed by the idea of separation/relocation, contact us for some complimentary advice* about your options. 

Application for Divorce

You can apply for divorce individually or jointly. Applications can be submitted online through the Australian Government website or through the Federal Circuit and Family Court of Australia.

If no issues arise, your divorce application will be processed without a court hearing. Under recent amendments, no appearance for sole applicants, whether or not there are children will be necessary, as long as the respondent does not object.

Once the court grants the divorce, you will receive a divorce order. The divorce becomes final one month after the order is made.

* We offer the first 30 minutes of any consultation for free to assist new clients. 

Disclaimer: This article is for general informational purposes only and should not be considered legal advice. If you’re dealing with a legal issue, it’s recommended that you seek advice from a qualified lawyer to understand your specific circumstances.