Divorce Q&A With Nardi Lawyers

What is Divorce?

The simplest answer…Divorce is the legal ending of a marriage.

Divorce does NOT finalise property arrangements between the parties, nor does it finalise parenting arrangements. However, it does permit you to remarry.

What must I prove to be granted a Divorce?

There must be an ‘irretrievable breakdown’ of the relationship between the parties. As evidence, the law requires parties to have been separated for at least 12 months before being eligible to apply for a Divorce.

Australia does not have an ‘at fault’ system. Therefore, although the reason for the breakdown is of course relevant in many ways to each party, it is not in itself a factor that is considered by the court in the context of a Divorce.

If there are children, it is important to provide the court with information about the current arrangements. Children includes any of the following:

• Any child of you and your spouse, including children born before the marriage or after separation;
• Any child adopted by you and your spouse, or
• Any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.

Am I eligible for a Divorce?

If you meet the above criteria – irretrievable breakdown of relationship and separation for 12 months, then you will be eligible, subject to satisfying one of the following:

• Be an Australian citizen; or
• Live in Australia and regard Australia as your permanent home; or
• Ordinarily live in Australia and have done so for at least 12 months before the Divorce.

How do I apply?

Applications are now made online through the Commonwealth Courts Portal.

You can apply for either a ‘sole divorce application’ or a ‘joint divorce application’.

Do I need the other person to consent?

You do not need the consent of the other party to apply for a Divorce. However, if you make a ‘sole’ application, you will need to serve the documents on the other party. You cannot serve these documents yourself. If you are self-represented, then we suggest that you visit the Federal Circuit Court website for their guidelines on service requirements. There are also time limits that you must comply with.

As of 10 June 2025, sole applicants with children under the age of 18 are no longer automatically required to attend the divorce hearing, although they may still choose to do so.

If you make a ‘joint’ application – that is an application together with the other party – there is no need to serve any documents and you will not be required to attend court.

The Court may still require attendance in certain circumstances, particularly if there are issues with service, jurisdiction, or arrangements for children. However, many divorce applications are now determined electronically without either party needing to appear.

I can’t locate the other person, what should I do?

You must take all reasonable steps to locate the other party. If you are still unable to locate them, you can put their address as ‘unknown’ in the application. You will need to upload a further application seeking an order to dispense with service or for substituted service.

We have been separated for 12 months, but we did get back together for a time – does that change things?

This can change things, depending on how long you reconciled for. Under Australian family law, periods of separation before and after a reconciliation can still be counted towards the required 12 months of separation, provided the reconciliation period (or periods combined) was less than 3 months in total.

If the reconciliation lasts for 3 months or more, the earlier period of separation will generally not count, and the 12-month separation period will usually restart from the date of the later separation.

For example, if you separated for six months, reconciled for two months, and then separated again for another six months, you would generally satisfy the 12-month separation requirement because the earlier separation period can still be counted.

However, if you separated for six months, reconciled for four months, and then separated again, the earlier six-month period would generally not count, and the separation period would usually start again from the later separation date.

What if we separated, but stayed under the one roof?

You can still apply for a Divorce, but the Court will need to be satisfied that you were genuinely separated during that time, despite continuing to live together.

If you were separated under one roof during any part of the required 12-month separation period, additional evidence will usually need to be provided to the Court explaining the circumstances of the separation. This may include matters such as sleeping arrangements, financial arrangements, household duties, and whether family and friends were aware of the separation.

In a joint Divorce application, an affidavit from one of the parties and an independent witness is usually required. In a sole application, the applicant will generally need to file an affidavit together with an affidavit from an independent witness who can confirm the separation arrangement.

In order to demonstrate to the court that you were separated, it is helpful to provide the following type of information:

• Whether you slept in separate rooms?
• Whether you were each individually responsible for your own meals and cleaning?
• Did you attend functions as a couple or separately?
• Did you continue to engage in a sexual relationship together?
• Any other factors that can demonstrate that you were living together, but as separated people.

Does it matter if I have been married for less than 2 years?

If you are wishing to apply to the Court for a divorce but have been married for less than two years, it is important to understand that the law in this area has recently changed.

Previously, parties who had been married for less than two years were generally required to attend counselling and obtain a counselling certificate before filing for divorce, unless the Court granted permission to proceed without counselling.

However, from 10 June 2025, this requirement was removed. Parties who have been married for less than two years are no longer required to attend counselling or file a counselling certificate before applying for divorce.

When will my Divorce take legal effect?

Your divorce will become ‘absolute’ (final) one month and one day after the court hears your application – the court will provide a Certificate of Divorce at this time and you are then able to legally remarry.

Is there anything else I should do after the Divorce?

You should review, update and/or draft a new will and estate planning documents.

You should also issue proceedings in the court regarding the property within 12 months (if you are unable to resolve out of court). If you do not issue proceedings within 12 months, then you will lose the automatic right to apply to the court for this purpose and you will need to apply for leave before you can have your property matter heard.