Frequently Asked Questions

Separation

1. What is my date of separation?

The date of separation is the date you and/or your spouse decided to end the relationship. 

It is important that the same date of separation is reported to all government agencies and authorities, for example, Department of Immigration and Centrelink. If you give different dates there may be serious consequences.

2. Why do I need to know the date of separation?

The date of separation affects:

• when you can apply for a divorce
• when child support becomes payable
• when you can claim Centrelink benefits
• how the court will calculate a property settlement. 

You must be separated from your spouse for at least 12 months before you can apply for a divorce. The court needs the date of separation to calculate the length of time you have been separated.

3. What if we can’t agree on the date of separation?

In your application or response, you must include the date you believe you and your spouse separated. 

If you and your spouse disagree about your date of separation and whether you have been separated for 12 months, the court will hold a hearing to determine the correct date. The court must be satisfied that you have been separated for 12 months before it can grant a Divorce Order. 

Where you and your spouse disagree about your date of separation, but agree that you have been separated for more than 12 months, the court may be satisfied that you have been separated for the minimum 12 month period. 

If you don’t agree with the date of separation your spouse has given the court, you should get legal advice. 

For more information, see When you can apply for a divorce.

Divorce

1. Do I have to get divorced?

No. You are not legally required to apply for a divorce after you have separated from your partner, however, it may be in your interests to get a divorce. For example, it may affect how your estate is distributed after your death.

If you want to get remarried, you must get a divorce. 

2. Do I have to get a divorce before I can apply for Property or Parenting Orders?

No. You can negotiate with your spouse about property and parenting at any time. However, you will only have one year from the date of your divorce to apply for Property or Maintenance Orders.

If you and your spouse need to negotiate a property settlement, you should get legal advice.  

3. Why does the court need to know about arrangements for my children?

The court needs to be satisfied that the appropriate arrangements have been made or that there are reasons why a Divorce Order should be made even though the court is not satisfied that arrangements have been made.

The court wants to see that your children are being looked after, and that the arrangements you have made for your children are suitable. 

The agreement can be informal. You do not need a parenting plan or Parenting Orders to apply for a divorce. This information is not used as a basis for Parenting Orders. 

4. Why is the court so strict about service and proving that documents have been served?

You must serve your court documents on your spouse so that your spouse knows what documents you have filed with the court. 

You must serve your Application for Divorce on your spouse so that your spouse can respond to your application. 

You must serve your Response to Divorce on your spouse so that your spouse knows if you are opposing their application. 

5. I am concerned for my safety. Do I still have to attend the divorce hearing?

If you are concerned about your safety, you should tell the court staff at least five working days before the hearing so that they have time to make arrangements to protect your safety. 

This can include:

• use of the safe room
• a separate entry and exit point from the court
• allowing you to have a support person 
• allowing you to give evidence by video or audio link
• closing the court to the public 
• excluding certain people from being in the courtroom.
  

Your safety is important. If you feel unsafe or are experiencing any violence, contact the police, a domestic violence counsellor or get legal advice.

6. Can I bring a friend or support person to the hearing?

You can bring a friend or support person to the hearing.  They will have to sit at the back of the courtroom.  

You can’t bring children under 18 years old into the courtroom. 

7. Can I apply for a divorce in Australia if I was married overseas?

If you were married overseas you can apply for a divorce in Australia if your marriage has irretrievably broken down, this means you have been separated for more than 12 months, and:

• you or your spouse are an Australia citizen, or
• you or your spouse regard Australia as home and intend to live here indefinitely, or
• you or your spouse ordinarily live in Australia and have done so during the 12 months immediately before filing for divorce. 
  

For more information, see Applying for a divorce. 

8. Can I get a divorce anywhere in Australia?

You can apply for a divorce in any State and Territory in Australia. 

All Applications for Divorce should be filed online through the Commonwealth Courts Portal. You will need to choose the court location that you want your application to be heard. You should choose your nearest Federal Circuit and Family Court registry. To find your nearest registry, see Court locations on the Federal Circuit and Family Court of Australia website.

9. Who can help me with my divorce?

If you are applying for or responding to an Application for Divorce and you need help with your divorce matter, you can call LawAccess NSW on 1300 888 529. LawAccess NSW is a free government telephone service that provides legal information, referrals and, in some cases, advice for people who have a legal problem in NSW.

You can also get help with your divorce matter from your local Community Legal Centre. For more information, see Community Legal Centres NSW Recommendation Service on the Community Legal Centres NSW website. 

If you need help filing out your Application for Divorce, you can call your local Legal Aid NSW office. For more information, see Legal Aid NSW offices on the Legal Aid NSW website. 

You can also get a private lawyer to help you with your divorce matter. You will have to pay legal fees. To find a private lawyer, see Find a lawyer on the NSW Law Society website.