Understanding Divorce In Australia

Divorce is the legal process that formally ends a marriage. [...]

Divorce is the legal process that formally ends a marriage. While the word "divorce" is often used to describe everything that happens when a couple separates—such as dividing property, arranging care for children, or deciding financial support—the legal meaning is much simpler. Divorce itself only changes your marital status from "married" to "divorced" or "single."

In Australia we have what is referred to as "no-fault Divorce"; this means that you do not have to have a reason for divorce. In fact, it is not even a requirement that both parties agree to a divorce; provided one person of the marriage communicates to the other that they want to separate this adequate to start the process for a divorce.

The Divorce Process

In Australia, applications for divorce are made through the Federal Circuit and Family Court of Australia. The key requirement is that you and your former partner must have been separated for at least 12 months and one day before applying. You can be considered separated even if you have continued to live under the same roof, but you will need to show evidence that the relationship has ended.

If you have children under 18, the Court will also need to be satisfied that proper arrangements are in place for their care, welfare, and development before granting the divorce.

Divorce vs Other Family Law Matters

It's important to understand that a divorce does not resolve issues such as:

• Property settlements (how assets and debts are divided)
• Spousal maintenance (financial support between former partners)
• Parenting arrangements (where children live and how decisions are made)

These are separate legal processes that can be dealt with before, during, or after your divorce.

Why Getting Advice Matters

Going through a separation can be stressful and emotional. While the divorce process itself is straightforward, the steps that follow—particularly property division and parenting matters—often require clear legal advice to protect your interests and ensure a fair outcome.

Speaking with a family lawyer early can help you understand your options, avoid delays, and make confident decisions for your future.

What is the difference between Divorce and Separation

Separation and divorce are distinctly different elements of family law matters in Australia.

Separation is the actual decision that a party, or both parties, of a relationship, no longer wish to be in that relationship. Separation can occur in both a de facto relationships and marriage and importantly, it does not need to be a mutual decision, that is, one party can make the decision to separate.

Separation is usually marked with a physical separation, where parties will live in separate homes, however this is not a requirement of separation and it is not uncommon for people, at least initially, to be "separated under one roof".

The important elements of separation is that you are no longer purporting to be in an intact relationship, that is your friends and family are aware you are separated, you stop doing "couple" things, like going out to events together and you otherwise act as separated individuals.

For de facto couples, separation marks an important date for their matter as it starts the limitation period (time limit) for the couple to resolve their property matter in accordance with the Family Law Act 1975 (CTH). A de facto couple has 2 years from the date of separation to resolve their family law property matter or commence court proceedings.

For married couples, separation starts the period of time that the couple must wait prior to applying for a Divorce. Married couple must be separated for 12 months prior to filing for divorce.

TIP: you cannot apply for divorce on the anniversary of your separation; you must wait until the following day. For example, if you separate on 1 January, you can apply for divorce on 2 January the following year.

Divorce is the legal process of no longer being married. Divorce is important as it triggers the finalisation of several related legal elements, for example, divorce in most circumstances will render parts of your Will and Enduring Guardian null and void. It will also trigger the 12-month limitation period of property matters for married couples.

Why you still need to apply for Divorce after Separation

When a marriage ends, Divorce can be one of the more difficult decisions that parties make, marking the finalisation of the relationship, however it is one of the most important steps and can often by overlooked.

In Australia, Divorce is more than just paperwork, it has as significant impact on your legal rights, financial future and your estate planning.

What Divorce Does

Divorce is the formal process that legally ends a marriage. Without it, you remain legally married, even if you've been separated for many years. This can affect your ability to remarry, your financial obligations, and the way your estate is managed if you pass away.

Divorce and Your Estate

When you pass away, your assets are divided according to your Will. If you don't have a Will, the law decides who inherits under the intestacy rules in your state. In most states, this means your husband or wife will receive some or all of your assets—even if you've been separated for years. Divorce changes this, because once you are divorced, your ex is no longer considered your spouse for intestacy purposes.

Under Australia law, when a divorce order takes effect, it revokes parts of your Will that are related to your former spouse, including:

• Any gifts that you left your ex-spouse
• Any appointment of your ex-spouse as Executor or Trustee

This can leave gaps in your estate planning if you haven't updated your Will and can sometimes create confusion for family members, however it is important to understand that separation alone will not change your Will and until you are legally divorced your former spouse may inherit under your existing Will.

Other Legal Implications

Remaining legally married can also affect other areas of your life such as:

• Superannuation and insurance – your spouse may remain a listed beneficiary of your superannuation and any life insurance policies.
• Property settlements – the limitation period to commence proceedings in the Federal Circuit and Family court of Australia for a property settlement will remain open, regardless of the length of time you are separated or whether you have informally divided your assets.
• Remarriage – you cannot remarry until a divorce has been granted.

Why taking the Step Matters

While divorce may feel like just a formality, it plays an important role in bringing legal clarity and finality to the end of a marriage. It allows you to move forward with confidence, update your estate planning, and protect your future wishes.

If you're separated, it's worth seeking advice about when and how to apply for divorce, and making sure your will, superannuation, and financial arrangements are updated at the same time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.