Q & A - Divorce & Family Law

Q: My spouse and I have recently separated, can I now commence divorce proceedings?

No, spouses must have lived separately and apart for at least 12 months and 1 day before either party can file an Application for Divorce – this Application can be made either solely or jointly. It is noted that spouses can still live together in the same home post-separation, as they will still be considered to be separated.

Q: My spouse and I reconciled our relationship for a few months, but we have now ended the relationship again, do I have to restart “the 12-month waiting period” before commencing divorce proceedings?

If spouses reconcile their relationship or resume cohabitation for a period of less than 3 months and then separate a second time, the original period of separation can be included.

If spouses reconcile their relationship for a period of more than 3 months before separating again, the original period of separation cannot be included and the “12-month waiting period” must recommence from the more recent date of separation.

Q: More than 12 months have now passed since my spouse and I separated, do I need their consent to file an Application for Divorce?

No, an Application for Divorce can be filed either by one spouse, or alternatively, spouses can jointly file an Application for Divorce.

Q: What does the Court require before a Divorce Order can be granted?

The Court must be satisfied of the following criteria before it can grant a Divorce Order:

Service of the Application for Divorce

The Applicant Spouse must, through a third party have effected Service of the Application for Divorce upon Respondent Spouse (in sole Application for Divorce), either by hand or by post.


Either the Applicant Spouse or the Respondent Spouse must:

(1) Regard Australia as their home and intends to live in Australia indefinitely, or

(2) Are an Australian citizen by birth or descent,

(3) Are an Australian citizen by grant of Australian Citizenship, or

(4) Ordinarily lives in Australian and has lived in Australia for 12 months immediately before filing an Application for Divorce.

Marriage and Separation

(1) The marriage is proven; and

(2) The marriage has broken down irretrievably and there is no reasonable likelihood of reconciliation; and

(3) The spouses must have been separated for at least 12 months and 1 day.


If there are children of the relationship currently under the age 18, or there are children that were treated as family members before separation, then proper arrangements in all the circumstances must have been made for each child’s care, welfare and development.

Q: I have recently filed a sole Application for Divorce, but I do not know the whereabouts of my spouse in order to organise service of the Court Documents?

If you have made all reasonable attempts to locate your spouse without success, you may file an Application in a case, seeking orders for substituted service to be able to serve the Respondent Spouse through other means such as email or via third party. The Court must be satisfied that through this alternative means, the Respondent Spouse will receive the Application for Divorce and supporting documents and will be made aware of the pending Divorce Proceedings.

If there are no alternative means in which service can be executed, you may alternatively make an application dispensing with the need for service.

Q: What are the different types of Financial Agreements in relation to married couples?

Similarly, there are three different types of Financial Agreements that are available to de facto couples. This includes Financial Agreements made before a de facto relationship commences, during a de facto relationship, and after a relationship has ceased.

Q: Can Financial Agreements be set aside by a Court?

Yes, if the Court is satisfied that any one or more of the prescribed events occurred between, or by either party of the Financial Agreement.

Q: If a Divorce Order has already been granted, what are the alternatives to entering into a Financial Agreement?

Former Spouses can decide to enter into Consent Orders instead of a Financial Agreement. Each party must seek their own independent legal advice about each option and weigh the advantages and disadvantages of each alternative.

Unlike Financial Agreements, Consent Orders must be filed with the Court for its consideration, and will only be approved if it is satisfied that the proposed Consent Orders are “just and equitable” and will consider all matters disclosed in the accompanying Application for Consent Orders. An Application for Consent Orders will include all usual matters that form the “4-Step Approach” and will consider factors such as the asset pool of the parties, their liabilities, the proposed division as well as each party’s financial and non-financial contributions such provision of childcare and homemaker duties, during the relationship.

Importantly, an Application for Consent Orders must be filed within 12 months from the date that a Divorce Order becomes final, otherwise you will need to seek leave (permission) from the Court before the Application can be filed. Similarly, an Application for Consent Orders made by a former de facto couple must be filed within 24 months from the date of separation, otherwise you will need seek leave from the Court.

Q: Can the Court enforce the terms of a Financial Agreement or party’s obligation to pay money under a Financial Agreement?

Yes, however, you must first seek a Court Order in relation to the validity of the Financial Agreement. The question of whether a Financial Agreement is valid, enforceable or effective is to be determined by the Court according to the principles of law and equity that are applicable in determining validity, enforceability and effect of contracts and purported contracts, and in proceedings relating to such a Financial Agreement. If a Financial Agreement is found to be enforceable, it can then be enforced as if it were an order of the Court.

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