How to File for Divorce in Australia: Step-by-Step Guide

What does family law cover in Australia?

Family law in Australia covers divorce, parenting arrangements, property settlements, spousal maintenance, child support, and protection from family violence. It applies to married and most de facto couples, including same-sex couples, and is mainly governed by the Family Law Act 1975 (Cth).

Key areas of Australian family law include:

• Divorce and separation - ending the legal marriage and confirming that the relationship has broken down irretrievably.
• Parenting matters - where children live, time with each parent, decision-making about education, health, religion, and travel.
• Property and financial matters - division of assets, debts, superannuation splitting, and spousal maintenance.
• Child support - financial support for children, usually managed through Services Australia.
• Family and domestic violence - protection orders and how violence affects parenting and property outcomes.
• De facto relationships - separation issues for unmarried couples who qualify under the Act.
• Financial agreements - "prenups" and other binding financial agreements made before, during, or after a relationship.

The main authorities and laws that apply are:

• Family Law Act 1975 (Cth) - core legislation for most family law issues.
• Federal Circuit and Family Court of Australia (FCFCOA) - the main family law court at a federal level.
• State and territory courts and laws - particularly for family violence orders and child protection (for example, AVOs in NSW, IVOs in Victoria).
• Services Australia - Child Support - administers child support assessments and collections.

How does divorce work in Australia?

Divorce in Australia is "no-fault": the only ground is that the marriage has broken down irretrievably, proven by 12 months of separation. You usually apply online to the FCFCOA and, once granted, the divorce takes effect one month and one day after the divorce order date.

Key requirements for divorce

• 12 months separation - you must have been separated for at least 12 months and 1 day.
• No reasonable likelihood of resuming - you must believe the relationship cannot be repaired.
• Connection to Australia - at least one party is an Australian citizen, ordinarily resident, or regards Australia as home.
• Marriage of at least 2 years - if married less than 2 years, you usually need a counselling certificate or special permission.

Can you be separated under one roof?

Yes. You can be "separated under one roof" if you live in the same property but have ended the relationship. You will need evidence, such as changes in sleeping arrangements, finances, and how you present yourselves publicly, and you may need an affidavit explaining this to the court.

How to apply for divorce: step-by-step

1. Gather documents - marriage certificate, ID, and any previous court orders.
2. File online - create an account on the Commonwealth Courts Portal and complete the divorce application.
3. Pay the filing fee - see cost table below; check if you qualify for a reduced fee (for example, concession card holder).
4. Serve your spouse (for sole applications) - arrange personal service or service by post, with proof of service filed.
5. Attend the hearing if required - you must attend if you have children under 18 and filed a sole application (unless otherwise directed).
6. Receive the divorce order - the order becomes final one month and one day after it is made.

Approximate divorce costs in Australia

Fees change regularly with indexation, so always check the FCFCOA website, but the following gives a general guide:

Divorce is separate from property and parenting matters. You do not have to finalise property and parenting before applying for divorce, but you normally must start property or spousal maintenance proceedings within 12 months after the divorce becomes final.

How are parenting arrangements and custody decided in Australia?

Parenting arrangements are decided based on the "best interests of the child", not parental rights, with a focus on safety and meaningful relationships with both parents where appropriate. Courts rarely use "custody"; instead they refer to "parental responsibility" and "live with/spend time with" arrangements.

The legal test: best interests of the child

Under the Family Law Act, the court considers many factors, including:

• Any risk of harm from family violence, abuse, or neglect.
• The benefit of the child having a meaningful relationship with both parents.
• The child's views, depending on age and maturity.
• The nature of the child's relationships with parents and other significant people.
• The capacity of each parent to meet the child's needs.
• The practical difficulty and expense of the child spending time with each parent.

Parental responsibility vs time

• Parental responsibility is about who makes long-term decisions for the child (education, major health, religion, etc).
• The court can order:
  • Sole parental responsibility - one parent makes long-term decisions.
  • Shared parental responsibility - parents must consult and try to agree.
• Time arrangements deal with where the child lives and when they spend time or communicate with each parent.

Types of parenting arrangements

• Parenting plan - a written agreement signed and dated by both parents. It is not directly enforceable as an order, but courts consider it.
• Consent orders - parenting orders made by the court by agreement, which are legally enforceable.
• Parenting orders (after a hearing) - imposed by the court when parents cannot agree.

Usual process to resolve parenting disputes

1. Separation and temporary arrangements - informal, often flexible arrangements in the early stages.
2. Family dispute resolution (FDR) - mediation with an accredited practitioner; generally required before filing an application for parenting orders (with some exceptions, such as family violence or urgency).
3. Parenting plan or consent orders - if agreement is reached.
4. Court proceedings - if no agreement; you file in the FCFCOA using an Initiating Application and supporting documents.

How long can parenting proceedings take?

• Simple consent orders: 4 - 12 weeks, depending on court processing times.
• Contested parenting cases: often 12 - 24 months or more to reach a final hearing, depending on complexity and court workload.

How is property divided after separation in Australia?

Property division after separation is based on what is "just and equitable", not automatic 50/50. Courts assess the asset pool, contributions by each party, and future needs, then decide an overall fair adjustment.

The 4-step approach to property settlement

The Family Law Act does not prescribe a formula, but courts typically use this framework:

1. Identify whether it is just and equitable to alter property interests - usually yes for separated spouses and de facto partners.
2. Identify and value the asset pool - all assets, liabilities, and superannuation, regardless of whose name they are in.
3. Assess contributions:
   • Financial contributions (earnings, property brought into the relationship, inheritances, gifts).
   • Non-financial contributions (improvements to property, unpaid work).
   • Homemaker and parenting contributions.
4. Consider future needs and adjust - age, health, income, care of children, earning capacity, length of relationship, etc.

What is included in the property pool?

• Real property (homes, investment properties, land).
• Bank accounts and cash.
• Vehicles, shares, investments, businesses, crypto assets.
• Superannuation (can be split between parties).
• Debts: mortgages, credit cards, personal loans, tax debts.

Time limits for property settlement

• Married couples - generally must commence court proceedings within 12 months of your divorce becoming final.
• De facto couples - generally must commence within 2 years of separation.
• After these time limits, you need special permission (leave of the court), which is harder to obtain.

Common ways to finalise property settlement

• Informal agreement - risky as it is not binding and has tax and stamp duty disadvantages.
• Consent orders submitted to the FCFCOA - often the safest and most common method.
• Binding financial agreement (BFA) - must be prepared with independent legal advice for each party.
• Court-determined orders after a hearing when agreement is not possible.

Indicative costs of property settlement

How is child support calculated and collected in Australia?

Child support in Australia is usually calculated under a statutory formula administered by Services Australia - Child Support, using both parents' incomes, care percentages, and the children's ages. Parents can rely on an assessment, make private arrangements, or enter binding child support agreements.

How the child support formula works

The formula is detailed, but in simple terms it looks at:

• Each parent's taxable income, minus a self-support amount.
• The percentage of care each parent provides (nights or days).
• The costs of children table, which is linked to age and combined income.

Services Australia uses this data to produce an annual child support assessment that states who pays whom and how much.

Types of child support arrangements

• Administrative assessment - default option; enforced by Services Australia if not paid voluntarily.
• Limited child support agreement - written agreement that must be at least equal to the assessment; easier to end than a binding agreement.
• Binding child support agreement - can set any amount; each party must receive independent legal advice and a certificate.
• Private (informal) arrangements - not enforceable under child support law.

How child support is collected

• Private collect - payer pays payee directly, according to the assessment or agreement.
• Child Support Collect - Services Australia collects payments from the payer (for example, via employer deductions) and transfers them to the payee.

When might you seek legal advice about child support?

• If you want a binding child support agreement that covers school fees, medical costs, or lump sums.
• If you disagree with an assessment and want to object or appeal.
• If there are complex income issues, such as companies, trusts, or self-employment.

What legal protections exist for family and domestic violence in Australia?

Victims of family and domestic violence can seek protection orders in state or territory courts and raise safety concerns in family law proceedings. The Family Law Act requires courts to prioritise child safety when making parenting orders.

Types of family violence

Family violence is broadly defined to include:

• Physical and sexual abuse.
• Emotional and psychological abuse, including threats and coercive control.
• Economic abuse, such as controlling access to money.
• Stalking, surveillance, and unauthorised tracking.
• Exposing children to family violence.

Protection orders (state and territory specific)

Names differ across Australia, but they serve similar purposes:

• NSW: Apprehended Domestic Violence Order (ADVO).
• Victoria: Family Violence Intervention Order (FVIO).
• Queensland: Protection Order (Domestic and Family Violence).
• SA: Intervention Order.
• WA: Family Violence Restraining Order (FVRO).
• Tasmania: Family Violence Order or Police Family Violence Order.
• ACT, NT: similar domestic violence order regimes.

These orders can restrict a person from contacting you, coming near your home or work, or engaging in certain behaviour. Breach of an order is usually a criminal offence.

How family violence affects parenting and property

• Parenting orders must prioritise protection from harm over maintaining relationships if there is a conflict.
• Courts may order supervised time, change changeover locations, or, in serious cases, restrict or suspend time.
• Evidence of family violence can influence property settlement, especially if it affected one party's capacity to contribute or earn (known in some cases as the "Kennon" principle).

Practical safety steps

• Contact police if you are in immediate danger.
• Seek advice from a domestic violence support service in your state or territory.
• Talk to a family lawyer about how to align your protection order with any family court orders.

What rights do de facto partners have in Australia?

De facto partners usually have similar rights to married couples in relation to property settlements and spousal maintenance, provided they meet the legal definition of a de facto relationship. Parenting and child support rules are the same for married and de facto parents.

When are you in a de facto relationship?

Under the Family Law Act, you are typically de facto if:

• You live together on a genuine domestic basis, and
• At least one of the following applies:
  • You have lived together for at least 2 years, or
  • You have a child together, or
  • You registered your relationship under state or territory law, or
  • One party made substantial contributions and serious injustice would result without an order.

De facto relationships include same-sex couples and can exist even if one party is still legally married to someone else.

De facto separation and property

• Property and spousal maintenance disputes are handled in the FCFCOA, similar to married couples.
• Time limit: generally 2 years from the date of separation to start court proceedings.
• The same "just and equitable" and 4-step property framework applies.

How do financial agreements (prenups) work in Australia?

Financial agreements, often called "prenups", are private contracts that set out how property and maintenance will be handled if you separate. They can be binding, but only if strict legal requirements are met.

Types of binding financial agreements (BFAs)

Under the Family Law Act, BFAs can be made:

• Before marriage or starting a de facto relationship - often called a "prenup".
• During the relationship - to update or clarify arrangements.
• After separation or divorce - as an alternative to consent orders.

Requirements for a binding financial agreement

• The agreement must be signed by both parties.
• Each party must receive independent legal advice before signing about:
  • How the agreement affects their rights, and
  • Whether it is to their advantage or disadvantage.
• Each lawyer must sign a certificate confirming the advice was given.
• The agreement must comply with technical requirements in the Family Law Act.

Courts can set aside BFAs in some situations, such as fraud, non-disclosure, duress, or where a child-related change in circumstances makes the agreement impracticable or unjust.

When are BFAs useful?

• To protect pre-existing assets, such as businesses, farms, or inheritances.
• In blended families, to preserve assets for children from earlier relationships.
• Where parties want certainty and control rather than leaving outcomes to the court.

What family law processes and timelines apply in Australia?

Most family law matters follow a similar pathway: negotiation and mediation first, then court only if required. Timelines vary, but complex disputes can take 1 to 2 years or more to reach a final hearing.

Typical pathway for family law matters

1. Initial separation
   • Safety planning and immediate arrangements for children and finances.
   • Consult a family lawyer for preliminary advice.
2. Information gathering
   • Collect financial documents, valuations, and any relevant records.
   • For parenting, gather school reports, medical reports, and evidence relevant to safety and care.
3. Negotiation and family dispute resolution (FDR)
   • Mediation for parenting is generally required before court, unless an exception applies.
   • Property mediation is strongly encouraged and often cost-effective.
4. Formalising agreements
   • Parenting: parenting plan or consent orders.
   • Property: consent orders or binding financial agreement.
5. Court proceedings (if needed)
   • File in FCFCOA; interim orders may be made early for urgent issues.
   • Case management, further mediation, expert reports, and a final hearing if unresolved.

Indicative timelines

• Divorce (uncontested): 3 - 6 months from filing to final order.
• Consent orders (parenting or property): 1 - 3 months, depending on court processing times.
• Contested parenting or property proceedings: often 12 - 24 months to final hearing.

Key Australian agencies and resources

• Federal Circuit and Family Court of Australia - main court for divorce, parenting, and property.
• Services Australia - Child Support - assessments and collection of child support.
• Family Relationship Advice Line - information and referrals (federal government service).
• Legal Aid commissions in each state and territory - free or subsidised legal assistance for eligible people.

When should you hire a family lawyer in Australia?

You should hire a family lawyer when there is family violence, significant conflict, complex assets, or you feel overwhelmed by the process. Early advice usually saves time, money, and stress, even if you hope to reach an amicable agreement.

Situations where expert help is strongly recommended

• Family and domestic violence or safety concerns for you or your children.
• Disputes about where children live, especially relocation or allegations of risk.
• Large or complex asset pools, businesses, trusts, or significant superannuation.
• International issues - overseas assets, international relocation, or different citizenships.
• Power imbalance - one partner controls finances or information.
• Need for binding agreements - BFAs, consent orders, or binding child support agreements.

What a family lawyer can do for you

• Explain your rights and obligations under Australian family law in plain language.
• Help you prioritise safety, children, and financial stability.
• Negotiate directly with your former partner or their lawyer.
• Prepare binding documents that are enforceable and tax-effective.
• Represent you in court, including at interim hearings and final hearings.

Typical costs and how to manage them

Ask prospective lawyers about:

• Hourly rates and who will work on your file.
• Estimated costs for each stage and options to limit expense.
• Whether legal aid or fixed fees might apply to your situation.

Next Steps: What should you do now?

The most effective next step is to get a clear picture of your situation, your goals, and your options under Australian family law. Then you can plan how to protect your children, your safety, and your financial future.

1. Clarify your priorities
   • Safety, children, housing, finances, and emotional support.
   • Write down what a "good outcome" looks like for you in 1, 3, and 5 years.
2. Gather key information
   • Financial documents: bank statements, tax returns, super statements, property records, loan documents.
   • Parenting information: school reports, medical reports, any incident reports or police/child protection involvement.
3. Get early legal advice
   • Book an initial consultation with an experienced Australian family lawyer.
   • Take your questions and key documents to make best use of the time.
4. Consider mediation and negotiation
   • Explore family dispute resolution for parenting and property where it is safe to do so.
   • Use legal advice to sense-check any proposals before agreeing.
5. Formalise agreements properly
   • Use consent orders or binding agreements to make settlements enforceable and to access stamp duty and tax advantages where available.

Taking structured, informed steps early usually leads to better, faster, and less stressful outcomes under Australian family law.