Family Lawyers Gold Coast

You may be eligible to apply for divorce in Australia if you meet at least one of the following criteria:

• You are an Australian citizen
• You ordinarily reside in Australia
• You consider Australia your home and intend to live here indefinitely
• You have lived in Australia for at least 12 months prior to filing the application

Australia operates under a no-fault divorce system. The only requirement is that the relationship has broken down irretrievably and you have been separated for at least 12 months.

You must be separated for at least 12 months before filing an Application for Divorce. If reconciliation occurs during that period, the timeframe resets once separation resumes.

In Australia, a court does not consider who was at fault in the breakdown of a marriage.

In order to file an Application for Divorce, you will need to:

• Prove that the marriage has irretrievably broken and that you and your former partner have been separated for a period of no less than 12 months;
• Have been married for more than two years, or that you have attended the required counselling with the Family Court.

If you are unsure if you are eligible to file an Application for Divorce, our Gold Coast Family Lawyers will be able to help you determine what steps you need to take and what options you may have available to you.

If you have been married for less than two years at the time you apply for divorce, there are a few extra steps you may need to take.

In most cases, the law requires both spouses to attend marriage counselling before a divorce application can be filed. The aim of this counselling is to explore whether reconciliation is possible. After attending, the counsellor will provide a certificate, which must be filed with your divorce application in the Federal Circuit and Family Court of Australia.

If counselling is not appropriate or possible – for example, due to family violence, abuse, or if your spouse cannot be located – you may apply to the court for permission to proceed without counselling.

In this case, you will need to file an affidavit explaining the reasons why counselling should be dispensed with. A family lawyer can guide you through this process and help make sure everything is done correctly, so your application isn’t delayed.

A spouse cannot stop a divorce simply by refusing or disagreeing with it.

In Australia, divorce is based on a no-fault system, which means the court is not concerned with who caused the breakdown of the marriage. If the court is satisfied that the marriage has broken down irretrievably and that you and your former partner have been separated for at least 12 months, the divorce will usually be granted – even if your spouse does not want it.

It is important that your spouse is properly served with the divorce application. Service means formally delivering the court documents to your spouse after they have been filed, so the court is satisfied they are aware of the divorce proceedings. If service is not carried out correctly, the divorce may be delayed.

A family lawyer can help ensure service is completed properly and guide you through the process if your spouse is uncooperative.

If you still live under the same roof as your former partner, you must prove separation and provide this evidence to the court. The action of separating must involve a complete and open break from the marital relationship. This can include:

• Living in separate rooms
• Not sharing meals together or mutual entertainment inside or outside the home
• Ceasing all sexual activity
• Operating separate bank accounts
• Not providing household services
• Not representing to friends, family, or colleagues that the marriage is continuing.

Court attendance depends on the circumstances of your matter. In some cases, an appearance may be required, particularly where children are involved or where separation occurred under the same roof.

Research shows that 75% of family law matters are resolved without court being required.

Attwood Marshall Lawyers charge a set fee for Applications for Divorce. You will also need to be aware of additional Court filing fees, which can be reduced if you receive Centrelink benefits or have a concession card.

For more information about the filing fee, visit www.federalcircuitcourt.gov.au and follow the links to the “Fees” page.

No. Divorce and property settlements are separate legal processes, and you do not need to be divorced before resolving property or spousal maintenance matters.

However, once a divorce becomes final, strict time limits apply. In most cases, you have 12 months from the date of divorce to commence property settlement or spousal maintenance proceedings. If this deadline is missed, you may need special permission from the court to proceed, which is not always granted.

Recent changes to the Family Law Act, effective 10 June 2025, have also updated how courts assess property settlements, including placing greater emphasis on the impact of family violence.

These changes can affect how property matters are decided, making early legal advice important.

Separation and divorce can have a significant impact on estate planning, but they affect your Will in different ways.

Separation alone does not automatically change or cancel your Will, which means an existing Will may no longer reflect your intentions. For example, if you have left your estate to your former spouse in your existing Will, but you are not yet divorced, and something unexpected happened to you before divorce, your former spouse may inherit what you intended in your Will.

For this reason, it is important to review your Will, powers of attorney, and superannuation nominations as soon as possible after separation to ensure your documents properly reflect your changed circumstances and wishes.