Divorce and Separation Lawyers, Brisbane
Divorce is the smallest part of separating. It ends the marriage — it does not divide anything, decide anything about children, or stop time limits running.
Divorce in Australia is governed by the Family Law Act 1975 and is granted by the Federal Circuit and Family Court of Australia. It requires that you have been separated for at least 12 months, and it is no-fault: the court does not consider why the marriage ended. Divorce is a separate process from dividing property and from arranging care of children, and neither depends on it.
What a divorce is, and what it is not
A divorce order ends a marriage. That is all it does. It does not divide property, it does not deal with superannuation, it does not decide who the children live with, and it does not resolve who pays what. Those are separate processes with their own tests, and they can be started, resolved and finished without a divorce ever being applied for.
This matters because people frequently wait for a divorce before dealing with property, and in doing so allow a deadline to pass. Once a divorce order takes effect, an application for property settlement or spousal maintenance must be brought within twelve months. After that, you need the court’s permission to apply at all, and permission is not automatic. Delay is the single most expensive mistake in this area.
Australia has had no-fault divorce since the Family Law Act 1975 (Cth) commenced on 5 January 1976. The court does not inquire into why the marriage ended, and there is no advantage in establishing that the other person was at fault. Conduct can be relevant to other questions — particularly where there has been family violence — but not to whether a divorce is granted.
The twelve-month rule, and separation under one roof
To apply for a divorce you must have been separated for at least twelve months and one day. Separation requires that at least one of you formed the intention to end the relationship, communicated it, and acted on it — it is not simply a matter of sleeping in different rooms.
You can be separated while still living in the same house, which the law calls separation under one roof. Many couples do this for financial reasons or because of children. The court will grant a divorce in that situation, but it requires more evidence: usually affidavits from each of you and from an independent person who can speak to the change in the relationship — separate finances, separate sleeping arrangements, the ending of shared social life and domestic services.
If you were married for less than two years, you must also either attend counselling and file a certificate, or obtain the court’s permission to apply without it.
Filing fees, forms and service requirements are set by the court and change from time to time. They are not reproduced here — check the current position with the Federal Circuit and Family Court before filing. See sources 2 and 3.
The date of separation is worth getting right
Separation is a question of fact, and the date can be contested. It matters for more than the divorce application: it starts the twelve-month clock, and it is often the reference point for what is treated as a contribution to the property pool and what happened afterwards.
Where the relationship ended gradually, or where there were reconciliations, the date is genuinely arguable. If you resumed cohabitation for three months or more, the earlier period does not count towards the twelve months and the clock effectively restarts. Shorter reconciliations can be disregarded, but the periods either side must add up.
De facto relationships
If you were not married, you do not need a divorce — but you may still have the same rights to property settlement and spousal maintenance. The Family Law Act applies to de facto relationships that meet its criteria, which look at the length of the relationship, whether there was a child, the degree of financial interdependence and whether the relationship was registered.
The time limit is different and is easy to miss. For de facto relationships, an application for property settlement must generally be brought within two years of the relationship ending, running from separation rather than from any order. There is no divorce to mark the date, which in practice makes the deadline easier to overlook.