What the Court wants to know to grant a Divorce

Divorce DIY Family Law Australia

What issues will the Court look at when granting a Divorce

In Australia, divorce is a “no fault” system. 

This means the Court does not need to know and does not care why your marriage ended. 

This makes it almost impossible for your spouse to object to a divorce being granted. 

By law in Australia, your spouse can only validly object to a divorce if:

  • you have been separated for less than 12 months;

  • the Court does not have jurisdiction to hear the divorce application.  A court will not be able to grant your application for divorce if you have not met all the requirements to apply for a divorce in Australia.

If the facts in a Divorce Application are incorrect, then you are able to tell the court the correct facts. 

If there are facts in the Application for Divorce that are not right, then the Responding Spouse has three choices as to how they can deal with that.

If the facts the Applicant Spouse has put in the Application for Divorce are not correct, then the Responding Spouse can either:

  • appear in person at the hearing and tell the court what is not correct; or

  • file a Response to Divorce within the relevant time frame, to say which facts are incorrect and why;

  • do nothing and not tell the Court the correct facts.

It is usually recommended that the best course of action if there are facts in the Divorce Application that are incorrect, is to file the Response to Divorce Form within the relevant time frame, explaining the correct facts.

At your Divorce hearing the Court will only consider whether it should grant your divorce. 

The Court does not care whether you both want the divorce or not, or the reasons for your divorce. 

The Court will not consider any parenting, property settlement, spousal maintenance, child support, interim orders or other issues. 

The Court will only look at whether you satisfy all the requirements necessary to be eligible to apply for a divorce in Australia and whether you have followed all the procedural requirements the court feels necessary. 

Our fact sheet When can you apply for a Divorce explains all the eligibility requirements and we also have a fact sheet listing the procedure to apply for a divorce including all the procedural requirements.

If there are Children under 18 years of age, the Court will want to know the arrangements made for those Children.

The questions the Court wishes to know regarding the arrangements made for the Children are asked in the Application form for Divorce. 

All of the questions asked in the Divorce Application about the arrangements made for the children under 18 years must be answered. 

The questions asked include things such as where the children live, the type of living arrangements, who else lives in the house, schooling, health and similar questions.  A short simple broad answer is usually all that is needed.  The court does not usually need a lot of detail in your answers. 

If there are children of a prior relationship, including step children and foster children, the arrangements for those children will also have to be set out.

If you need the court to consider property settlement issues or make parenting arrangements then you will have to file a separation Application in Court seeking orders about those issues.  You can find out more about how to do this from the Family Court at this link.


More Information on Divorce in Australia


Particularly if you are representing yourself in your Divorce, you should be prepared for what will happen in Court on the day the Court hears your Divorce Application. Find out more from our fact sheet What happens at the Divorce Hearing.

If you have been married for less than two years then you also need to know about the requirements the law imposes and which the Court will require you to comply with. Those extra requirements are detailed in our fact sheet Divorce for Marriages under 2 years duration.

What will your Divorce cost you? How long will it take to get your Divorce? Our fact sheet How much will a Divorce cost and how long does it take answers those questions.

It is also important to make sure you don't miss knowing about the important legal issues that could affect your children and family. Read our fact sheet How does Divorce affect your Will, Superannuation, Life Insurance and family after death to find out more.

You can also read information in our fact sheet on What you need to do to be able to apply for a Divorce including information about the requirements to apply for a Divorce, what you need to do if you got married overseas or have been separated under the same roof and how periods of reconciliation are treated.

If you are thinking about doing your Divorce yourself, you should find out how easy it could be by reading our fact sheet A list of steps you need to take to get a Divorce.


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Content By:
Michelle Beatty, Senior Lawyer
Virtual Legal

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