How to get a Divorce in Australia:
The Requirements; Separations Under the Same Roof; Reconciliations after Separation; Overseas Marriages

Divorce DIY Family Law Australia

How to get Divorced in Australia - The Requirements

In Australia you cannot file an Application for Divorce in Court as soon as you separate.

As well as having had to have been separated for at least 12 months, there are other requirements you must satisfy before you will be entitled to file your Divorce Application in Court in Australia.

All of the following must apply to you for you to be able to file your Divorce Application and sucessfully obtain a Divorce in Australia:

  • Your marriage must have broken down irretrievably;

  • You and your former spouse must have been living separately and apart for at least 12 months;
    • if you have been separated but living under the same roof see additional requirements below;
    • also see below for the effect of periods of reconciliation during your separation;

  • There is no reasonable likelihood of resuming married life;

  • Reasonable arrangements must have been made for the care of any children under 18 years of age;

  • You need to have been married for at least 2 years or if not, then attended the required counselling.

As well as being able to satisfy everything on the above list of requirements, you need to have an appropriate jurisdictional connection with Australia to be able to get an Australian Divorce.

You can have a jurisdictional connection with Australia in one of 3 ways.

In addition, to apply for a Divorce in Australia either you or your husband/wife must:

  1. regard Australia as your home and intend to live in Australia indefinitely; or

  2. be an Australian citizen by birth, descent or by grant of Australian citizenship; or

  3. ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must satisfy all of the requirements listed above as well as one of the three jurisdictional connections with Australia, to be able to get a divorce in Australia.

If you meet all the legal requirements to get a divorce in Australia then see our checklist to follow how to file for divorce.

If you have been married for less than 2 years there is a requirement that you attend counselling before you are eligible to apply for a divorce.  If this applies to you, you can read more in our Fact Sheet Marriages less than Two Years.

How do reconciliations after we separated affect the 12 month period

If you reconciled after your separation and were reconciled for 3 months or more, then the 12 month period starts after the reconciliation. 

If you were reconciled for less than 3 months, you can usually add up the period before the reconciliation and the period after the reconciliation to make the total of at least 12 months. 

Separations under the same Roof

If some or all of your 12 month separation period was spent living under the same roof, the court will require further information from you as evidence to prove you were in fact separated before granting your Application for Divorce.

With your Divorce Application, you will usually have to file an Affidavit stating all the facts that prove you were separated despite the fact you were both still living under the same roof.

It will be changes in the way you related to each other during your marriage and after your separation that will be able to prove to the court that your marital relationship was over and you were separated, even though you were living under the same roof. 

This might include:

  • living in separate bedrooms;

  • the ceasing of intimacy and sexual activity;

  • having separate bank accounts and finances;

  • not doing household services for each other like washing, preparation of meals etc;

  • acting so that it is clear to friends, family members, neighbours, employers etc that you are separated and your marriage has ended;

  • not attending social activities together;

  • not socialising together inside the home or sharing entertainment activities together in the home (eg watching TV, having friends over for dinner etc).

If you need to file an Affidavit about your separation under the same roof with your Divorce Application, then you can read how to do so in our fact sheet How to prepare an Affidavit

You got Married Overseas

If you got married overseas you can still apply for a Divorce in Australia. Read our fact sheet about Australian Divorce requirements for marriages overseas, to see whether additional requirements will apply to you.

Divorce in Australia: What else you should know

Having a checklist of steps you need to follow so you can do your Divorce yourself without paying a lawyer will save you some divorce costs. Our fact sheet A list of steps you need to take to get a Divorce gives you an easy to follow procedure to do your own divorce.

If you are applying for a Divorce you will want to know costs and the length of time it is likely to take. Read more in our fact sheet explaining How much will a Divorce cost and how long does it take.

Courts do not consider all issues (such as property settlement, parenting arrangements, child support etc) when granting a divorce. The issues the Court looks at are explained in our fact sheet What things will a Court want to know to grant a Divorce.

If you are doing your Divorce yourself then you need to be prepared for what will happen on the day your divorce is heard in Court. We have a fact sheet explaining What happens at the Divorce Hearing.

Issues surrounding your children, money, finances and property will usually be dealt with first once you have decided to get a Divorce, but you should also know what is explained in our fact sheet How does Divorce affect your Will, Superannuation, Life Insurance and family after death.


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Content By:
Michelle Beatty, Senior Lawyer
Virtual Legal

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