For most couples, the divorce itself is the simplest part of separating. But it has rules, a process and, importantly, consequences for property and maintenance claims. This guide explains how divorce works in New South Wales, how long it takes, and what influences cost.
This is general information, not legal advice.
Divorce is federal law
Divorce in Australia is governed by the Family Law Act 1975 (Cth), so the process is the same in NSW as in every other state. Applications are made to the Federal Circuit and Family Court of Australia.
Step 1: Check you are eligible
To apply for divorce, you must show that:
- The marriage has broken down irretrievably
This is the only ground, and it is established by showing you have been separated for at least 12 months and there is no reasonable likelihood of getting back together. - Australian connection
Either you or your spouse is an Australian citizen (by birth, descent or grant), lives in Australia and regards it as home, or has ordinarily lived in Australia for the 12 months before filing. - Two-year marriages
If you have been married for less than two years, you must generally have attended counselling with a family counsellor, or obtain the court's permission to apply without it.
Australia has no-fault divorce. The court does not consider why the marriage ended.
Step 2: The 12-month separation
Separation begins when at least one spouse decides the marriage is over, acts on that decision, and communicates it to the other (or the other becomes aware of it). There is no form to lodge and no need for a court order.
Reconciliation
If you reconcile once for up to three months and then separate again, the time before and after can be added together. The time together does not count.
Separated under one roof
You can be separated while living in the same home. You will need to provide affidavit evidence explaining how the relationship changed, such as:
- sleeping in separate rooms;
- separate finances, or changed financial arrangements;
- no longer doing things together as a couple, socially or domestically;
- telling family, friends or government agencies about the separation.
An affidavit from a friend or relative who can confirm the separation is usually required.
Step 3: Joint or sole application?
You can apply:
- jointly, where both spouses agree and sign the application; or
- solely, where one spouse applies. The other spouse must then be served.
Joint applications avoid the need for service and are often simpler. A sole application is perfectly appropriate where your spouse will not cooperate, cannot be found, or you simply prefer to proceed yourself.
Step 4: Prepare and file
The application is completed and filed online through the Commonwealth Courts Portal. You will need:
- your marriage certificate (with a translation, if it is not in English);
- evidence of citizenship or residence, if relevant;
- any affidavits required, such as for separation under one roof or where the marriage is under two years; and
- the filing fee, or evidence supporting a reduced fee.
Where there are children of the marriage under 18, the application must describe the arrangements for them. The court must be satisfied that proper arrangements have been made before granting a divorce, but it does not make parenting orders as part of the divorce.
Step 5: Serve your spouse (sole applications)
If you apply solely, the application must be served on your spouse, usually at least 28 days before the hearing (or 42 days if they are overseas). It can be served by post, with an acknowledgment signed by your spouse, or by hand, but not by you personally. A process server or another adult can serve it.
If your spouse cannot be found or will not acknowledge service, you can ask the court for substituted service or to dispense with service.
Your spouse can file a response if they disagree with facts in the application (for example, the date of separation or the jurisdiction) but cannot stop a divorce simply because they do not want one.
Step 6: The hearing
The court lists the application for hearing. Whether you need to attend depends on the circumstances:
- Joint applications, and sole applications without children of the marriage under 18, can usually be dealt with without anyone attending.
- Sole applications with children under 18 generally require the applicant to attend, usually by phone or video.
If the court is satisfied, it makes a divorce order.
Step 7: The divorce order takes effect
A divorce order takes effect one month and one day after it is made, unless the court shortens that time. You can then obtain a divorce certificate from the Commonwealth Courts Portal. You cannot remarry until the order has taken effect.
How long does it take?
- Separation
At least 12 months before you can file. - Filing to hearing
Commonly a few months, depending on the court's list and service. - Hearing to effect
One month and one day.
In total, most couples are divorced some months after the first anniversary of their separation.
What influences cost?
The costs of a divorce itself are usually modest. They include:
- The court filing fee, set by regulation and updated periodically. A reduced fee is available in some circumstances.
- Service costs, if a process server is used.
- Legal fees, if you engage a lawyer. Straightforward divorces are commonly done for a fixed fee. Contested issues (such as a disputed separation date or jurisdiction) add cost.
The larger costs of separation usually relate to property settlement and parenting, not the divorce. We give every client a written costs estimate before starting work.
The deadline most people miss
A divorce does not resolve property or parenting. And once the divorce order takes effect, you have 12 months to apply to the court for property orders or spousal maintenance. After that, you need the court's permission, which is not guaranteed.
For that reason, many people finalise their property settlement before applying for divorce, or ensure that the settlement is well advanced before the divorce takes effect. See property settlement.
Other things to update
- Your will
In NSW, divorce generally revokes gifts to a former spouse and their appointment as executor, unless the will says otherwise. Separation alone does not. Update your will when you separate. - Superannuation nominations and life insurance beneficiaries are not affected by divorce. Review them.
- Powers of attorney and enduring guardianship appointments should be reviewed.
- Name change
You can resume a previous name using your marriage or divorce certificate, depending on the organisation's requirements.
How we can help
We prepare and manage divorce applications, including those involving separation under one roof, overseas marriages and uncooperative spouses, and we make sure the divorce fits with your property and parenting plans. See divorce lawyers Sydney and parenting and custody.
This article is general information about the law as at the date it was last reviewed. It is not legal advice and does not take your circumstances into account.