Divorce & Separation in Australia

Expert Legal Guidance During Life's Challenging Transitions

Divorce is a significant life transition that affects every aspect of your family's future. At Invictus Legal, our experienced divorce lawyers provide professional, compassionate support to guide you through this challenging process with clarity and confidence.

We understand that ending a marriage involves more than just legal paperwork—it's about setting the foundation for your next chapter. Our team is committed to helping you navigate the complexities of Australian family law while protecting your rights and interests.

Understanding Divorce in Australia

The "No-Fault" Divorce System

Australia operates under a "no-fault" divorce system established by the Family Law Act 1975. This means:

• You don't need to prove wrongdoing (such as infidelity or unreasonable behavior)

• The only ground for divorce is the irretrievable breakdown of marriage

• This breakdown is established by demonstrating at least 12 months of separation

• The reasons behind your separation are not relevant to the Court's decision to grant a divorce

The no-fault approach simplifies the divorce process itself, allowing you to focus on important matters like property division, financial arrangements, and children's needs.

Eligibility for Divorce in Australia

To apply for divorce in Australia, you or your spouse must:

• Be an Australian citizen (by birth, descent, or grant of citizenship); OR

• Consider Australia your home and intend to live here indefinitely; OR

• Ordinarily reside in Australia and have done so for at least 12 months before filing

Additionally, you must satisfy the Court that:

• You and your spouse have lived separately and apart for at least 12 months

• There is no reasonable likelihood of reconciliation
  

The Divorce Process: Step by Step

1. Separation Period

Before applying for divorce, you must:

• Be separated from your spouse for at least 12 months

• Have had the intention that the marriage is over at the time of separation

Separation Under One Roof: It's possible to be "separated" while still living in the same home. However, you'll need to provide additional evidence through affidavits that describe the changed nature of your relationship, including:

• Sleeping arrangements

• Division of household responsibilities

• Financial separation

• How the relationship was presented to family and friends

Our Invictus Legal divorce lawyers can help you prepare the necessary documentation to establish separation under one roof.

2. Filing Your Divorce Application

Once the 12-month separation period has passed, you can:

• File a sole application (by yourself)

• File a joint application (together with your spouse)

The application requires:

• Your marriage certificate (with translation if not in English)

• Proof of Australian citizenship or residency

• Filing fee payment (currently $1,060, with concessions available)

• Counselling certificate if married less than 2 years

Applications are filed through the Commonwealth Courts Portal, and our team at Invictus Legal can manage this entire process for you.

3. Service Requirements (for Sole Applications)

If filing a sole application:

• Your spouse must receive copies of all filed documents

• Service must occur at least 28 days before the hearing (if in Australia)

• Service must occur at least 42 days before the hearing (if overseas)

• You cannot personally serve the documents yourself

Invictus Legal can arrange proper service and prepare all necessary proof of service documents.

4. Court Hearing

A court hearing will be scheduled approximately 6-8 weeks after filing. You must attend if:

• You filed a sole application AND there are children under 18

• Your spouse has filed a response to the application

• You're seeking special service arrangements

For joint applications without children under 18, attendance is generally not required. Our Invictus Legal lawyers can represent you at the hearing if needed.

5. Divorce Order

If satisfied with your application, the Court will grant a Divorce Order that becomes final one month and one day after it's made. At this point:

• Your marriage is legally dissolved

• You are free to remarry if you wish

• Important time limits begin for property settlement applications
  

Crucial Time Limitations

Be aware of these critical timeframes:

• Property settlement applications: Must be filed within 12 months of your divorce becoming final

• Spousal maintenance applications: Must be filed within 12 months of your divorce becoming final

Missing these deadlines can significantly complicate your legal position. Invictus Legal strongly recommends addressing property and financial matters as early as possible.

Divorce vs. Property Settlement

Many people confuse divorce (the legal end of marriage) with property settlement (division of assets and liabilities). These are separate legal processes:

• Divorce ends the marriage legally

• Property settlement divides your assets, liabilities, and financial resources

You can finalize property matters before, during, or after divorce proceedings through:

• Consent orders (agreement approved by the Court)

• Binding financial agreements

• Court proceedings (if agreement isn't possible)

Our Invictus Legal family lawyers can help you understand the most appropriate timing and approach for your situation.

Special Circumstances

Marriages of Less Than 2 Years

If you've been married for less than two years, you must:

• Attend counseling with a family counselor to discuss reconciliation possibilities; OR

• Seek the Court's permission to file without counseling (in cases of domestic violence or where a spouse cannot be located)
  

Same-Sex Divorce

Same-sex divorces follow the same legal process as heterosexual divorces in Australia, with:

• The same requirements for establishing separation

• Equal rights regarding property division

• Consideration of children's best interests in parenting arrangements

However, child custody matters may involve additional legal considerations depending on biological relationships and adoption status.

Overseas Marriages

If you were married overseas:

• Your marriage is recognized in Australia if it was valid where it took place

• You can apply for divorce in Australia if you meet residency requirements

• You'll need to provide your marriage certificate (with certified translation if not in English)
  

Annulment of Marriage

In rare circumstances, you may seek an annulment (declaration that no valid marriage existed) rather than divorce. Grounds include:

• Prior existing marriage

• Prohibited relationship

• Underage marriage without consent

• Fraud, duress, or mistake during the ceremony

• Mental incapacity to understand the marriage
  

Children and Divorce

Australian family law prioritizes children's best interests above all else. When children are involved:

• Parenting arrangements are separate from the divorce process

• You don't need to wait until divorce is final to establish parenting arrangements

• The Court considers the benefit of children maintaining meaningful relationships with both parents

• Children must be protected from physical or psychological harm

Our Invictus Legal family lawyers can help you develop parenting plans or secure parenting orders that protect your children's wellbeing during and after divorce.

Why Choose Invictus Legal for Your Divorce

Our dedicated team offers:

• Expertise in Australian family law

• Compassionate support during emotional transitions

• Clear communication that demystifies the legal process

• Strategic advocacy to protect your rights and interests

• Practical solutions tailored to your unique situation

We understand that divorce affects every aspect of your life—financial, emotional, and practical. Our approach addresses the whole picture, not just the legal paperwork.

Frequently Asked Questions

How long does a divorce take in Australia?

From filing to finalization, the process typically takes 3-4 months, including the mandatory one-month waiting period after the Court grants the Divorce Order.

How much does a divorce cost?

The court filing fee is currently $1,060 (with concessions available for eligible applicants). Legal fees vary depending on complexity and whether you need representation for property or parenting matters. Invictus Legal offers transparent fee structures and flexible payment options.

Can I apply for divorce online?

Yes, divorce applications in Australia are filed through the Commonwealth Courts Portal. Our Invictus Legal team can manage this process for you.

Can my spouse prevent the divorce?

No, if you've been separated for 12 months and meet the other requirements, your spouse cannot stop the divorce. They can only dispute whether you've actually been separated for 12 months or whether the Court has jurisdiction.

What if I don't know where my spouse is?

We can help you apply for special service arrangements or dispensation of service if your spouse cannot be located.

Get Expert Legal Support Today

Navigating divorce requires both legal expertise and emotional intelligence. At Invictus Legal, we provide both, ensuring you receive not just skilled legal representation but also the support you need during this challenging transition.

Contact our experienced family lawyers today for a confidential consultation. We'll help you understand your rights, explore your options, and develop a strategy tailored to your unique circumstances.

Call us at 02 8553 0500 or complete our online enquiry form to take the first step toward resolution and a positive new beginning.

Invictus Legal: Providing clarity and direction when it matters most.