Being separated for the purposes of applying for a divorce does not mean that you have to physically live in a separate residence to your partner.
It is common for married couples to remain living under one roof despite being separated and seeking divorce (sometimes called cohabitation). This may be because they have family and parental responsibilities they need to fulfill, cultural or religious reasons or due to financial constraints.
If you file the application for divorce jointly and you are living under the one roof, then you will both need to file an affidavit with the application describing the living situation. If you are the sole applicant, then you also need to file an affidavit with that information.
The online application will also request that a third party such as a friend or a relative confirm the living arrangement. This is not necessary to the application and eventual granting of a divorce order, but it is common practice in divorce proceedings (Pavey 1976).
Here are some case examples of where cohabitation was considered for the application for divorce:
You may be eligible for a reduction in the court fees or an exemption if you meet certain criteria.
An applicant may be eligible for a reduced fee if they meet any of the following (note: if you have applied as joint applicants, you both will need to meet them):
If any of the criteria applies, you will need to tick the box in the online application for divorce and provide evidence.
If you are not applying online, the evidence, application and the form called application for reduction of payment of divorce or decree of nullity – general will need to be submitted.
If the above doesn’t apply, you may still be eligible for a reduction if payment of the fee would cause financial hardship. This will be up to the court to decide based on a number of factors, such as your income, assets and day-to-day expenses. If you believe this applies, you will need to submit the form called application for reduction of payment of divorce or decree of nullity – financial hardship.
You may be eligible to have the fee waived if you meet the above criteria, are an Independent Children’s Lawyer, or can prove financial hardship.
If you think this applies, then you must complete an application for exemption from fees – general form or visit the court and file a form called application for exemption from fees – financial hardship with your application for divorce.
If you are applying for a divorce as a sole applicant, then you are required to serve the following documents on the respondent by post:
Alternatively, you can arrange a third party to hand the documents to the respondent or to their lawyer (if the lawyer agrees, in writing, to accept service on their behalf).
Service must be completed at least 28 days before the hearing (or 42 if the respondent is overseas). Please record the date you carried out service.
Once service has been made, you must e-file the documents in the Commonwealth Courts Portal.
If you are having trouble serving your spouse, then you can apply for either substituted service to be carried out, or have service dispensed with.
Substituted service
Substituted service allows you to serve the documents on a third person who the court is satisfied will bring those documents to the attention of your spouse.
Dispensation of service
If the court is satisfied that you have made all reasonable attempts to make service, you will either not have to do anything further to serve the documents, or receive instructions from the court as to how to proceed.
To apply for either substituted service or dispensation, you will need to complete an application in case form on the Commonwealth Courts Portal and attach an affidavit.
In your affidavit, you must explain all steps you have carried out to locate your spouse, such as:
Please note that you should attend court to hear the outcome of this application (it is usually held on the same day and time as the divorce hearing). You may be required to give further information.
If you are the respondent and have been served with an application for divorce by your spouse and disagree, you must file a response within 28 days of being served the application (if within Australia) or 42 days if overseas.
In your response, you must outline why you oppose the divorce. As it is a no-fault system in Australia, the only ground for divorce is the irretrievable breakdown of marriage. Therefore, the only ways you could argue that the divorce application should not be granted if you could successfully prove there is a chance that you will both want to get back together, or that you have not in fact been separated for 12 months.
You can file the response via the Commonwealth Courts Portal or at the family law registry and then serve this on your spouse.
You must then attend the hearing to find out if the court grants the application for divorce.
You do not need to attend the hearing of the application for divorce except in some circumstances.
If you made the application for divorce yourself, you must attend the hearing if there is a child or children of the marriage aged 18 years or younger.
The circumstances where you are not bound to attend the hearing but should are:
You do not have to attend the hearing as a sole applicant if:
If you made the application for divorce jointly, then you do not have to attend the hearing, even if there is a child or children of the marriage under 18 years of age.
If you cannot attend, you must fill out a form requesting to attend via telephone/videolink.
If the application for divorce has been granted, then it will take effect one calendar month after the order is made (which is the date of the hearing).
The court will make the order only if it has been satisfied that proper arrangements have been made for the care, welfare and development of any children less than 18 years of age.
Where the court is not satisfied that there are proper arrangements in place, it will adjourn the proceedings to seek a report from a consultant to assess the proposed arrangements.
If one of the parties to the application for divorce dies before the order takes effect, then the other party must inform the court or a registrar by filing with the Federal Circuit Court a death certificate with an attached affidavit setting out the date and place of death.
When the application for divorce is heard and then granted, the court will draft an order that declares that the divorce has taken effect. The divorce order records all the matters that were considered in making the decision to grant the application for divorce.
The divorce order is issued one month after the hearing, specifying the date that the order commences.
The divorce order will include a time limit for making claims regarding the division of property or maintenance, and will specify that the divorce order may vary or revoke a will that is in place. It will also name any children less than 18 years of age.
The granting of divorce does not include decisions on the division of property and other future arrangements at the same time. These must be pursued separately. For more information, visit the Parenting and Property & Finance pages on the Family Court website.
A copy of the divorce order will be given to both the applicant and the respondent.
The former spouses will be free to remarry after the date specified on the divorce order.
You should not make plans to remarry until the application for divorce has been granted and finalised. This is because it will not always be the case that the application for divorce is granted on the date of the hearing. For example, you may be asked by the court to provide further information or take additional steps before it can make the decision whether to grant the application or not.
You are, however, able to complete and lodge a Notice of Intended Marriage form with a celebrant. This must be done at least one month before the marriage ceremony and the celebrant must ensure they have viewed the final divorce order before performing the marriage.
When a divorce order is granted it is taken to have legal effect from the date specified on the order.
If, between the date of the hearing and the date on the order, you and your spouse resolve your issues and get back together, you can apply to the court to have the divorce order rescinded, which means that the order is cancelled and no longer has effect.
To do this, you and your spouse will jointly need to file with the court a form called an Application in a Case.
A divorce order can also be cancelled where the court is satisfied that there has been a miscarriage of justice in some way, for example by fraud, perjury, suppression of evidence or any other circumstance by one or both parties.
A granting of an application for divorce does not mean that property and maintenance issues have been decided.
The divorce order will specify that in order to bring proceedings for the division of property and any maintenance, you must do this within 12 months after the date the order for divorce is final.
If you wish to commence proceedings for maintenance and the division of property after 12 months, you will need to file a separate application to obtain permission from the court to do so.
Please note that if the divorce took place outside of Australia then the 12 month period does not apply, as was the case in Anderson & McIntosh [2013] FamCAFC 200.
You and your former spouse can sort out how your property will be divided by either:
For more information on the different approaches and what forms to file, please visit this page.
If you are not able to reach a resolution on your own and decide to apply to have the court decide, then the following factors will be relevant:
If you made the application for divorce jointly, then you do not have to attend the hearing, even if there is a child or children of the marriage under 18 years of age.
If you cannot attend, you must fill out a form requesting to attend via telephone/videolink.
By default, when a divorce is granted it means that any gifts that were to be given to the (now former) spouse are revoked, unless there is something contrary to this in the will itself, such as if the will stated that it was made “in contemplation of marriage”.
If the (former) spouse was the executor of the will, then they will be omitted from the will.
The same rule applies across Australia except in Western Australia, where the rule only applies if the divorce order was made after 9 February 2008.
It is advisable that you consider updating your will after the divorce order is final. If you fail to update your will following divorce, this means that your former spouse may be awarded part of your estate.
Kate Austin Family Lawyers
Head office:
Level 8, 193 North Quay
Brisbane QLD 4000
Sydney office:
Level 4, 20 Bond street
Sydney, NSW 2000
Office Hours
Monday – Friday: 9AM – 4PM
Our Office:
Kate Austin Family Lawyers
Brisbane office:
level 8, 193 North Quay
Brisbane, QLD 4000
Sydney office:
Level 4, 20 Bond street
Sydney, NSW 2000
