Divorce
Ending the marriage is the simple part. The deadline it starts is what matters.
Ending the marriage is the simple part. The deadline it starts is what matters.
Australia has had no-fault divorce since 1975. There is a single ground: that the marriage has broken down irretrievably. Nobody has to prove adultery, cruelty or fault, and the court will not hear about who did what.
Irretrievable breakdown is proved by separation. You must have been separated for at least twelve months and one day before the application is filed. Separation can be unilateral — only one of you needs to have decided the marriage is over and communicated it. Your spouse’s agreement is not required, and their objection will not stop a divorce.
If you got back together for a period, a reconciliation of less than three months does not reset the clock — the periods either side can be added together. Three months or more, and the twelve months starts again from the second separation.
Continuing to live at the same address does not prevent the court finding you separated. Many people cannot afford to move out, particularly with a tight rental market and children at school. The law accommodates that, but it has to be proved.
You will need two affidavits: your own, and one from an independent person — a family member, friend or neighbour who observed the change. They need to set out how the relationship was before, how it changed, why you continued living in the same home, the arrangements made for any children under eighteen, and what you told Centrelink, Medicare and the ATO.
What courts look for is practical: separate sleeping arrangements, finances pulled apart, an end to doing domestic tasks for each other, fewer shared activities, and having told family and friends.
First, if you have been married less than two years, you no longer need a counselling certificate or the court’s leave to apply. That requirement was repealed with effect from 10 June 2025, and the same process now applies regardless of how long you were married. The twelve-month separation requirement is unaffected, so in practice a marriage cannot be dissolved before it is at least twelve months and a day old.
Second, the court can now decide a divorce application without either party attending, whether you file solely or jointly and whether or not there are children under eighteen. Previously a sole applicant with children had to attend. You will still need to attend, or be represented, if you asked to attend, if a Response is filed, if a party objects to the matter being dealt with in their absence, or if the court directs it.
Hearings are conducted electronically, usually by telephone, so a client in Grafton does not ordinarily need to travel anywhere.
Applications are filed electronically through the Commonwealth Courts Portal, with your marriage certificate, proof of citizenship or residency, and any under-one-roof affidavits. A filing fee applies, and a reduction may be available if you hold certain concession cards or are in financial hardship — for a joint application, both of you must qualify.
A joint application needs no service. A sole application must be served on your spouse, and this is where matters come unstuck. You cannot serve the documents yourself. Service must be at least 28 days before the hearing if your spouse is in Australia, or 42 days if overseas, and you must file proof of service. If your spouse cannot be found, you can apply for substituted service or to dispense with it, but that will delay the hearing.
If there are children under eighteen, the court must be satisfied that proper arrangements have been made for their care, welfare and development before the divorce takes effect. This is a satisfaction finding, not a parenting order — nothing in the divorce decides where the children live.
The divorce order takes effect one month and one day after the hearing. Until then you are still married and cannot remarry.
A divorce order ends the marriage. It does not divide property, transfer the house, split superannuation, deal with debts, make any parenting order, or change your name.
Worse than that, it starts a clock. Once your divorce order takes effect, you have twelve months to apply to the court for a property settlement or spousal maintenance. After that you need the court’s permission, which is not granted as a matter of course.
Because the order takes effect one month and one day after the hearing, the real deadline falls roughly thirteen months after your hearing date — not twelve, and nothing to do with your date of separation. We see both errors: people who diarise twelve months from separation and are years out of time, and people who assume the hearing date and are a month out.
While you are still married and undivorced there is no time limit at all on a property application. That is a strong reason to get advice on whether to sort out property before you apply for the divorce, or at the very least to diarise the deadline the day the order is made. An informal agreement is not binding and does not stop the clock — only consent orders or a properly executed financial agreement give you finality.
Divorce affects a will made before it. In New South Wales it cancels a gift to your former spouse and their appointment as your executor, and the will then operates as if they had died before you — unless the will says otherwise. Separation alone does nothing at all.
Superannuation death benefit nominations and life insurance beneficiary nominations sit outside your will and need to be reviewed separately. A binding nomination in favour of a former spouse can survive a divorce quite happily if nobody changes it.
No. You can file a sole application without their consent, and their objection to the divorce itself will not prevent it. What you must do is serve the application on them properly — at least 28 days before the hearing if they are in Australia, or 42 days if overseas — and file proof of service. A spouse who files a Response can dispute matters such as jurisdiction or the date of separation, but not simply that they would prefer to stay married.
Yes. The law recognises separation under one roof, and living at the same address does not prevent a finding that you are separated. You will need two affidavits — your own and one from an independent person such as a relative, friend or neighbour — setting out how the relationship changed, why you kept living together, and the arrangements for any children under eighteen. Courts look for practical indicators like separate sleeping arrangements, separated finances, and having told family and government agencies.
Usually not. Since 10 June 2025 the court can decide a divorce application without either party attending, whether you filed solely or jointly and whether or not there are children under eighteen. Hearings are conducted electronically, generally by telephone. You will need to attend or be represented if you asked to attend, if a Response is filed, if a party objects to it being dealt with in their absence, or if the court directs attendance.
No. The requirement to file a counselling certificate or obtain the court's leave for marriages under two years was repealed with effect from 10 June 2025, and the same process now applies regardless of how long you were married. The twelve-month separation requirement still applies, so in practice a marriage cannot be dissolved before it is at least twelve months and a day old.
No, and this is the most expensive misunderstanding in family law. A divorce order ends the marriage and does nothing else — it does not divide property, split superannuation, deal with debts or make any parenting arrangements. Those are separate processes, resolved by agreement formalised in consent orders or a financial agreement, or by application to the court. Far from closing the matter off, the divorce actually starts a deadline running.
Yes, and it is strict. Once the divorce order takes effect you have twelve months to apply for a property settlement or spousal maintenance, and after that you need the court's permission, which is not automatic. Because the order takes effect one month and one day after the hearing, the deadline falls about thirteen months after your hearing date — and it has nothing to do with your separation date. While you remain married and undivorced there is no limit, so it is worth getting advice on the order in which to do things.
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This page is general information about the law in New South Wales. It is not legal advice and does not take account of your circumstances. The law changes, and how it applies depends on the facts of your matter. Please contact us so we can work out whether we are able to assist you.