Australian Family Law Services

Australia operates under a no-fault divorce system pursuant to the Family Law Act 1975 (Cth). Divorce is a federal matter and the same rules apply across all states, including Victoria.

Basic requirements

To apply for divorce, the following must be satisfied:

• The marriage has irretrievably broken down;
• The parties have been separated for at least 12 months; and
• At least one party meets one of the following criteria:
  • Were born in Australia, or are an Australian citizen by descent (born outside Australia where at least one parent was an Australian citizen and the birth is registered in Australia); or
  • Are an Australian citizen by grant of citizenship (a citizenship certificate will be required); or
  • Are lawfully present in Australia and intend to continue living in Australia, and have been living in Australia for at least the last 12 months — evidence must be provided, such as a passport showing an arrival date at least one year prior and a valid or current visa.

If there are children under 18, the Court must also be satisfied that proper arrangements have been made for their welfare before granting the divorce order.

How the 12-month separation period is calculated

Separation requires that the relationship has broken down and that at least one party has formed an intention to end the marriage and acted upon it. The other party does not need to agree.

• Separation under one roof: Parties may be considered separated even while living in the same home, provided the relationship has genuinely ended. The Court will look for supporting evidence such as sleeping separately, no shared finances, divided household duties, and informing family or friends of the separation.
• Reconciliation: If the parties reconcile for one continuous period of up to 3 months, that period is excluded from the count and the time before and after is added together. However, if the reconciliation exceeds 3 months, the clock resets entirely and a fresh 12-month period must begin.

There is no fixed formula for dividing matrimonial assets in Australia. The Court applies a four-step process under ss 79 and 75(2) of the Family Law Act 1975 (Cth).

The four-step process

1. Identify and value the asset pool The asset pool includes all assets and liabilities held by either or both parties, such as real property, company shares, bank accounts, investments, superannuation, and debts.
2. Assess contributions The Court considers all contributions made during the relationship and after separation, including:
   • Financial contributions (income, purchase funds, etc.);
   • Non-financial contributions (homemaking, childcare, etc.);
   • Third-party contributions (gifts or inheritances) — their weight depends on when they were received and how they were applied;
   • Post-separation contributions — significant increases or decreases to the asset pool after separation can affect the final outcome.
3. Consider future needs Under s 75(2), the Court takes into account a range of factors including:
   • Age and health of each party;
   • Income, earning capacity, and employment prospects;
   • Care arrangements for children under 18;
   • Length of the marriage;
   • Whether either party is supporting another person;
   • The financial impact of the role each party assumed during the relationship, such as sacrificing a career to raise children.
4. Determine whether the outcome is just and equitable The Court considers all of the above to determine whether the proposed division is just and equitable. It is worth noting that this question is also considered at the very outset of the process — the Court must first be satisfied that making any property order at all is appropriate before proceeding.

Superannuation splitting order: Redirects a specified amount from one party’s superannuation fund to the other’s — the funds are not cashed out but transferred between funds;

Yes. De facto partners may apply for property settlement under s 90SB of the Family Law Act 1975 (Cth), provided the relevant threshold conditions are met.

Eligibility

An applicant must satisfy at least one of the following:

• The de facto relationship lasted at least 2 years; or
• There is a child of the relationship; or
• One party made significant contributions during the relationship, such that a failure to make an order would result in serious injustice; or
• The relationship is registered under a law of a state or territory.

Time limit

Applications must be made within 2 years of separation (s 44). Leave of the Court is required to apply out of time, and such leave is not granted as a matter of course. Early legal advice is strongly recommended.

How property is divided

Once eligibility is established, the Court applies the same four-step process as for married couples — identifying and valuing the asset pool, assessing contributions, considering future needs, and determining whether the outcome is just and equitable. Superannuation may also be included in the settlement.

Scope of application

The federal framework applies to both opposite-sex and same-sex de facto relationships. Some states and territories also maintain their own registered relationship schemes, but property settlement applications are dealt with under federal law.

A Binding Financial Agreement (BFA) is governed by ss 90B–90KA of the Family Law Act 1975 (Cth). A BFA may be made before marriage (s 90B), during marriage (s 90C), or after separation or divorce (s 90D). The timing affects which section applies, but the formal requirements are the same across all three stages.

Requirements for a valid BFA

Written and signed The agreement must be in writing and signed by both parties.

Independent legal advice Both parties must each obtain independent legal advice from their own lawyer before signing. The advice must be substantive and specific, covering:

• The effect of the agreement on the rights of that party;
• The advantages and disadvantages of making the agreement at the time it is made.

It is not sufficient for a lawyer to merely witness the signature without providing substantive advice.

Lawyer’s certificates Each party’s lawyer must sign a certificate confirming that the required independent legal advice was provided. Each party must receive a copy of the other party’s lawyer’s certificate — this is a formal procedural requirement and failure to comply can render the BFA void.

No fraud, duress, or unconscionability The agreement must be entered into free from fraud, duress, undue influence, or unconscionable conduct.

Setting aside a BFA

Under s 90K, the Court may set aside a BFA where:

• It was obtained by fraud, including non-disclosure of material financial matters;
• A party entered into it for the purpose of defrauding or defeating a creditor;
• The agreement is void, voidable, or unenforceable under general contract law;
• Circumstances have changed since signing, making it impracticable to carry out;
• A material change in circumstances has occurred relating to the care, welfare, or development of a child, and hardship would be caused if the agreement were not set aside;
• A party engaged in unconscionable conduct.

Where a marriage was registered overseas, the following additional documents are generally required when applying for divorce in Australia, pursuant to the Family Law Rules 2021 (Cth) and the Federal Circuit and Family Court of Australia (FCFCOA) application requirements.

Marriage certificate

The original overseas marriage certificate must be provided. If the original is unavailable, a certified copy issued by the relevant foreign government authority may be accepted. The certificate must be an official government-issued document — a religious or church certificate alone is generally not sufficient unless it also serves as the official civil registration document in that country.

If the country where the marriage took place does not issue civil marriage certificates (for example, where only religious or customary records exist), additional evidence may be required to establish the validity of the marriage, and legal advice should be sought.

Translation

If the marriage certificate is not in English, a NAATI-certified English translation must be provided, submitted together with the original or certified copy as a bundle. The translation must include the translator’s NAATI credentials and declaration.

Proof of residency or citizenship

At least one party must demonstrate they meet the jurisdictional requirements. Acceptable documents include:

• Australian passport;
• Australian citizenship certificate;
• Visa grant notice or ImmiCard (for permanent residents);
• Passport showing an arrival date at least one year prior, together with a valid or current visa (for those relying on 12 months’ ordinary residence).

Overseas service

If the respondent is located overseas, service must comply with the Family Law Rules 2021 (Cth). Depending on the country, service may need to be effected through diplomatic or consular channels, or through a foreign court. This process can significantly extend the overall timeline and arrangements should be made well in advance.