Divorce in Australia: the 12-month rule, what it costs, and how long it takes

Divorce is the part of a separation that is least worth fighting about and most often misunderstood.

It is no-fault. It does not divide anything. It does not decide where the children live. It is, in the end, a form, a fee and a wait. The reason people find it confusing is that the rules around the timing are strict, and a mistake in timing costs months.

So here is the whole process, in order, with the numbers.

The only ground: 12 months apart

Section 48 of the Family Law Act 1975 has one ground for divorce: the marriage has broken down irretrievably. You prove that with one fact: you have been separated for at least 12 months and there is no reasonable likelihood of getting back together.

Nobody asks why. There is no “fault” to prove, no conduct to allege, and no defence based on conduct.

The 12 months runs from the date of separation. That date matters, so be precise about it. Separation is when at least one of you decided the marriage was over and acted on it, and communicated it. It does not require anyone to move out.

Reconciliation resets the clock, with one exception. If you get back together for a period of less than three months and then separate again, the two periods of separation are added together. If the reconciliation lasts three months or more, the 12 months starts again from the second separation.

Separation under one roof

A lot of people stay in the same house after separating: for the children, for the mortgage, because moving out is expensive. The law allows it. You can be separated under one roof.

What changes is the evidence. The court needs an affidavit explaining how life changed: separate bedrooms, separate finances, no shared meals or social life, that family and friends were told. For a sole application, it also wants a corroborating affidavit from a third party who saw it. For a joint application, both of you swear to it.

This is the most common “extra document” in a divorce and the one most often done badly. Vague statements (“we drifted apart”) get requisitioned. Specific ones (“from 3 March 2025 I slept in the front bedroom, we opened separate accounts at ANZ on 10 March, and I told my sister Priya on 12 March”) get through.

Married less than two years?

Section 44(1B): if you have been married for less than two years when you apply (counting from the wedding, not the separation), you must first attend counselling and file a certificate, or get the court’s leave to apply without it. If counselling is not possible, because of family violence or because your spouse will not attend, that is done by affidavit.

What it costs

For a joint application, the reduced fee needs both of you to hold a concession card. One card is not enough.

The court fee is the floor. On top of it, you pay for whoever prepares and files the application and handles service. The variables that move the cost are the extra documents (one-roof affidavit, counselling or leave affidavit, missing certificate affidavit), service problems, and whether a lawyer attends the hearing for you. In our online divorce service each of those is a separate, visible line, because that is how they are charged.

The timeline

• Day 0Separation. Write the date down somewhere permanent.
• 12 monthsEarliest date you can file. The court's online portal checks this against the separation date in the form.
• FilingApplication, marriage certificate, any affidavits. Sole application: served on your spouse at least 28 days before the hearing if they are in Australia, 42 days if overseas.
• HearingSet by the court, typically two to four months after filing. Joint applications and sole applications with no children under 18 are usually decided without anyone attending.
• + 1 month, 1 dayThe divorce order takes effect. You are divorced. You can remarry after this date, not before.

From filing to final order is commonly around four months. From separation to final order, therefore, is about 16 months at the fastest. People who have been separated for years and want it done quickly are still looking at four months.

Children under 18

If there are children under 18 and you make a sole application, you must attend the hearing (in person, by video, or by a lawyer appearing for you). The court checks that proper arrangements have been made for the children; it is not deciding parenting, but it will not make the divorce order until it is satisfied. For a joint application, attendance is not required.

What divorce does not do

The last point in the left column is the one that matters most. Once the divorce order is final, you have 12 months to apply for a property settlement. Many people assume the deadline runs from separation. It runs from divorce. If you have assets to divide and you have not resolved them, do that before, or at the same time as, the divorce. Getting the divorce first and leaving property “for later” creates a deadline you may not notice until it has passed. I have written about the property process in detail here.

When you need more than the standard process

Four situations need a separate conversation rather than a standard application:

1. You cannot locate your spouse, or they are avoiding service. Substituted service or dispensing with service needs its own application and evidence.
2. You married overseas and the certificate is not in English, or you cannot obtain it. A translation, or an affidavit about why it is unavailable.
3. There is family violence and you cannot safely attend counselling (under-two-years marriages) or serve the other party yourself. There are ways around each; raise it at the start, not after a requisition.
4. You are not sure Australia has jurisdiction. Either of you must be an Australian citizen, domiciled here, or ordinarily resident here for the 12 months before filing. Usually easy; occasionally not.

Everything else is procedure. If you have been separated 12 months, have your marriage certificate and know where your spouse is, the hard part is already done.