Divorce vs Property Settlement vs Parenting Orders
Before we begin, it is critical to understand that in Australian family law, divorce, property settlement and parenting arrangements are three separate legal processes. A divorce order simply ends the legal marriage — it does not divide assets or determine where children live. Many people are surprised to learn that property settlement can occur before, during or even after a divorce is finalised.
The Legal Ground for Divorce
Australia operates a no-fault divorce system under the Family Law Act 1975 (Cth). This means the only ground for divorce is the irretrievable breakdown of the marriage, demonstrated by 12 months of continuous separation.
You do not need to prove fault, wrongdoing, adultery or any other reason. The court's only concern is whether the marriage has broken down irretrievably and whether proper arrangements have been considered for any children under 18.
Step 1: The 12-Month Separation Period
You must be separated for at least 12 continuous months before you can apply for divorce. Importantly, it is possible to be separated under one roof — that is, living in the same house but leading separate lives. If this applies to you, additional evidence (such as affidavits from friends or family) will typically be required to satisfy the court.
The separation date is significant and should be documented. It marks the beginning of the 12-month countdown and may also be relevant to property settlement considerations.
Step 2: Filing the Application
Divorce applications are filed online through the Commonwealth Courts Portal (comcourts.gov.au). You can file a:
- Sole application — filed by one spouse without the other's consent. You must arrange to serve the application on your spouse.
- Joint application — filed together by both spouses. This is generally faster and simpler as there is no requirement for service.
Filing fees: The current court filing fee is approximately $1,060 (as at 2026). Fee reductions are available for applicants who hold a Health Care Card, Commonwealth Seniors Health Card or other concession.
Documents required:
- Your original marriage certificate (or a certified copy). If your certificate is in a language other than English, you will need an official translation.
- An affidavit confirming the date of separation, current living arrangements and, if applicable, arrangements for children under 18.
Step 3: Service (Sole Applications Only)
If you file a sole application, you must serve a copy of the application and supporting documents on your spouse at least 28 days before the hearing date (or 42 days if your spouse is overseas). Service can be by:
- Personal delivery (not by you — by a third party over 18).
- Posting to their last known address if the court grants leave for substituted service.
- In some cases, service by email or social media has been permitted by the court.
If you cannot locate your spouse, you can apply for dispensation of service, though you will need to demonstrate that you have taken all reasonable steps to find them.
Step 4: The Hearing
For joint applications, the hearing is usually dealt with on the papers — meaning neither party needs to attend court. The court reviews the documents and, if satisfied, grants the divorce order.
For sole applications, the applicant (or their lawyer) must attend the hearing. If there are children under 18, the court will need to be satisfied that proper arrangements have been made or proposed for their care, welfare and development.
Hearings are typically brief — often 10 to 15 minutes — and are conducted before a Registrar or Judge.
Step 5: The Divorce Order
If the court is satisfied that all requirements have been met, it will make a divorce order. The order takes effect one month and one day after the hearing date. This means you are not legally divorced on the day of the hearing — the order becomes final the following month.
Once the divorce order takes effect:
- You are free to remarry.
- You have 12 months from the date of the divorce order to apply to the court for property settlement (if you have not already done so). After this period, you will need the court's leave to proceed.
Step 6: Property Settlement (Separate Process)
As noted above, property settlement is a separate legal process. It involves:
- Identifying and valuing the total asset pool (property, superannuation, businesses, investments, debts).
- Assessing each party's financial and non-financial contributions during the relationship.
- Considering each party's future needs (age, health, earning capacity, care of children).
- Determining whether the proposed division is just and equitable.
Property settlement can be formalised through consent orders (agreed terms approved by the court) or binding financial agreements (private contracts that do not require court approval but must meet strict legal requirements). If the parties cannot agree, the matter may proceed to a contested hearing.
Common Misconceptions
- "Everything is split 50/50." There is no automatic equal split. The court considers contributions and future needs on a case-by-case basis.
- "I need my spouse's permission to divorce." You do not. A sole application can be filed without consent.
- "De facto couples can't access the Family Court." De facto couples in most states can access the same property settlement and parenting frameworks as married couples.
- "Divorce is the same as property settlement." They are entirely separate legal processes with separate applications, timelines and outcomes.