The one thing the court needs to see
In Australia, the court doesn't ask why the marriage ended. It asks whether it has broken down irretrievably, and it takes 12 months of separation as the evidence. That's it. There's no fault to prove and no one to blame.
You can be separated while still living under the same roof, which happens a lot when there are children or a mortgage to think about. It's a valid separation as long as you can document it properly. What the court is looking for is a relationship that has ended, not two addresses.
Before you apply: what to have ready
Being prepared makes the paperwork quicker, and it gives you some steadiness at a time when steadiness is hard to find. Before you start the application, gather the following.
- Identification for both of you.
- Your marriage certificate, either the original or a court-certified copy.
- If either of you was born outside Australia, evidence of citizenship, visa or residency status.
- The details of the separation: the date, and the living arrangements since, especially if you've stayed under one roof.
- Financial records covering income, assets and debts.
- If you have children, a parenting plan or evidence of the arrangements currently in place for their care.
The paperwork is the easy part to list. Getting your head around the decision is the harder one, and it's fine if that takes longer than gathering documents.
The application, step by step
The process looks bigger than it is. Taken one step at a time, it's manageable.
You file the application, either on your own or jointly with your spouse, making sure the details are accurate and the ground is clearly stated. You lodge the supporting documents with it. If you've applied on your own, the application has to be formally served on your spouse. Then there's a hearing, where the court reviews what's been filed. If the court is satisfied, it makes a divorce order.
That order becomes final one month and one day after the hearing.
Say Leah, from Camira, applies on her own
Leah and her husband separated in February last year but kept living in the same house until August, for the kids. She wants to apply this February, once 12 months have passed.
She gathers her marriage certificate, ID, and documents showing the separation began in February despite the shared address. She files a sole application, has it served on her husband, and attends the hearing in April. The court is satisfied, makes the order, and one month and one day later she's divorced. The house, the super and the parenting arrangements are separate conversations, and none of them had to be finished for the divorce to go through.
Children
When there are children, their wellbeing sits at the centre of everything that follows. Parenting arrangements are worked out with the children's best interests leading, alongside your rights as a parent, and they can be agreed between you or decided by the court. The divorce order itself doesn't decide any of this. It ends the marriage and nothing more.
Property and money
The property settlement is the division of everything the two of you have built up: real estate, superannuation, investments, personal belongings, and the debts as well. The aim is a division that's just and equitable, which takes into account what each of you contributed and what each of you will need going forward. Fair doesn't always mean equal.
One timing point is worth knowing now. Once your divorce is final, there's a 12-month window to formalise a property settlement or start proceedings. If you'd rather not be working to that clock, settling the property before the divorce is often the calmer order to do things in.
When it's final
Your divorce is final when the divorce order takes effect, one month and one day after the hearing. From that point you're no longer married and you're free to remarry if you choose.
It's also the point to update your will. Divorce changes what you'd want to happen with your estate, and a will written during the marriage may no longer say what you mean.
Questions people ask
Do we both have to apply? No. You can apply jointly, or one of you can apply alone. A sole application has to be served on the other spouse.
Can I get divorced if we still live in the same house? Yes. Separation under one roof is recognised, provided you can show the relationship ended and when. Keep records of the date and the arrangements since.
Does the divorce sort out the house and the kids? No. The divorce ends the marriage. Property settlement and parenting arrangements are separate processes, and they can be dealt with before or after the divorce.
Where this comes from
- The Family Law Act 1975 (Cth): the ground for divorce, the separation requirement, and when a divorce order takes effect.
How Stanford Legal can help
Our family law team will tell you what applies to your situation, help you assemble the evidence, and handle the filing and service so you're not learning court procedure at the hardest possible time. The first conversation is free. Call 0483 980 001 or book a time online.
This article is general information for Queensland readers, current at the time of writing. It isn't legal advice for your situation. Liability limited by a scheme approved under Professional Standards Legislation.
