Going through a relationship breakdown is never easy. It can create waves of emotion, leaving you unsure of what to do next. At a time like this, making decisions about your future, especially legal ones, can feel daunting. Getting help and guidance through the divorce process makes it more manageable.
The only stipulation for divorce in NSW is that a couple must already be separated for at least 12 months prior to filling in the divorce application. This timeframe is important as it allows couples to demonstrate their independence, establish separate finances and create working parenting agreements. The separation period applies even if the couple continues to live under the same roof while separated.
This article has been put together to help you understand the terms and obligations of separation and divorce, as well as walk you through the practical side of putting forward an application. While it doesn’t replace personal legal advice, it aims to give you a clear starting point.
What Is The Divorce Process In NSW?
Divorce in NSW is the legal dissolution of a marriage. When completed, it will end a marriage in the eyes of the law.
Australia has a “no-fault” divorce system, which means you do not have to prove any grounds for divorce. The only legal requirement is that the marriage has broken down irretrievably, shown by at least 12 months of separation. There needs to be proof of the relationship ending in order to meet the separation requirement.
Separation and divorce are two distinct legal concepts in family law:
Separation is defined as one or both partners in a marriage or de facto relationship deciding to end the relationship. It doesn’t require any formal paperwork and can even happen while both people are still living under the same roof.
Divorce is a formal legal process that ends a marriage. It must be granted by the Federal Circuit and Family Court of Australia. A filing fee needs to be paid when submitting an application to the Federal Circuit Court closest to where you live.
To apply for divorce in NSW, at least one party must have a connection to Australia. This can be through citizenship, regarding Australia as their home, or having lived in Australia for at least 12 months before applying.
The application can be filed online through the Commonwealth Courts Portal. You can submit either a sole application (by yourself) or a joint application (with your former spouse).
For marriages less than two years old, couples must attend counselling before a divorce will be granted, though exceptions may apply in certain circumstances.
If separation is briefly interrupted by reconciliation periods of less than 3 months, these can still count toward the required 12-month separation period.
Once finalised, divorce legally ends the marriage and starts a 12-month deadline to resolve property and financial matters through the court if needed.
Divorce itself does not divide property — it only ends the marriage legally. Once divorced, ex-spouses are able to complete steps to legally divide assets, debts, superannuation, and financial responsibilities. Divorce also allows either party to remarry in the future, which is not allowed under separation.
Parenting arrangements for children are also handled separately through a different process after the divorce, however, it’s important to show how these arrangements will take place during a divorce hearing, as a court won’t grant a divorce unless it is satisfied there are proper arrangements in place for any children under 18.
Step-By-Step Guide To Divorce In NSW
The divorce process in NSW follows specific legal procedures that must be completed in sequence. Couples need to satisfy certain requirements before applying, complete the proper paperwork, and follow court protocols to finalise their divorce.
Step 1: Legal Separation
In NSW, separation is the first step towards divorce. Importantly, couples can be separated while still living under the same roof. This arrangement is recognised by the court as long as you can prove you’re living separate lives.
If you’re separated but living together, you’ll need evidence to prove your separation. This might include sleeping in different rooms, maintaining separate finances, or reducing shared activities.
It’s wise to document the date of separation clearly. This date is crucial as it marks the beginning of the 12-month waiting period required before filing for divorce.
During separation, begin sorting out practical matters like parenting arrangements and property division. These issues are separate from the divorce itself but often need resolution during this period.
Step 2: Applying For Divorce
To apply for divorce in NSW, either you or your spouse must be an Australian citizen, permanent resident, or have lived in Australia for at least 12 months before filing.
You must:
- Demonstrate that your marriage has broken down irretrievably, proven by living separately for at least 12 months.
- File an application for divorce online through the Commonwealth Courts Portal (www.comcourts.gov.au).
- Pay the application fee. The standard fee is $1060, but reduced fees are available to eligible parties.
You can file as a sole applicant if needed. A joint application is simpler as it doesn’t require serving documents on the other party.
For sole applications, you must take an additional step to properly serve the divorce papers on your spouse at least 28 days before the hearing (or 42 days if they’re overseas). This gives them formal notice of the proceedings and opportunity to respond. You can’t serve the papers yourself; it must be done by a third party or process server.
Step 3: Court Hearing And Final Order
Most divorce hearings are straightforward, especially for joint applications or sole applications without children under 18. In these cases, you typically don’t need to attend court.
If you’ve filed a sole application and have children under 18, you’ll likely need to attend the hearing. The court wants to confirm that proper arrangements are in place for any children.
During the hearing, a registrar or judge reviews your application to check that all requirements have been met. If satisfied, they will grant a divorce order.
The divorce becomes final one month and one day after the court grants the order. This waiting period allows either party to appeal the decision if they wish.
Once finalised, the court issues a Divorce Order. This document legally ends your marriage and allows either party to remarry if they choose.
Keep your Divorce Order safe—you’ll need it for official purposes such as changing your name or if you decide to marry again in the future.
Common Legal Issues During Divorce
When going through a divorce, there are several legal issues that need to be worked through, often alongside the emotional challenges of separation.
Parenting Arrangements
One of the most important legal issues is making arrangements for any children involved—this includes deciding where they will live, how much time they’ll spend with each parent, and how major decisions will be made.
Australian family law focuses on the child’s best interests rather than parental rights.
While legally correct terms were previously “custody” and “access”, terminology has now shifted to better reflect the ongoing role both parents play in children’s lives. The correct terms are now “lives with” and “spends time with”.
Parents can create arrangements through:
- Informal agreements
- Parenting plans (written but not legally enforceable)
- Consent Orders (formal, court-approved arrangements)
Courts encourage parents to reach agreements themselves where possible, but will make determinations when necessary. Child support may also need to be arranged, either through Services Australia or a private agreement.
If there are concerns about safety or family violence, legal protections such as intervention orders may also be required to keep everyone safe.
Property And Financial Settlements
Dividing assets after separation can be challenging. Property settlements in NSW cover all assets and liabilities regardless of whose name they’re in, including:
- Real estate and investments
- Superannuation
- Vehicles and personal belongings
- Business interests
- Debts and mortgages
There’s no automatic 50/50 split in Australian law. Instead, the court considers:
- Identifying and valuing all assets and liabilities
- Assessing contributions (financial and non-financial)
- Evaluating the future needs of each party
- Determining what’s just and equitable
Property settlements must be finalised within 12 months of the divorce order becoming final. This can be done through:
- Direct agreement between parties
- Mediation
- Consent Orders
- Court proceedings (if agreements can’t be reached)
Getting professional legal and financial advice early helps protect your interests.
Spousal Maintenance
In some cases, one partner may also be entitled to spousal maintenance if they can’t support themselves financially.
Spousal maintenance involves financial support paid by one former partner to the other after separation. This applies when one person cannot meet their reasonable expenses and the other has the capacity to pay.
The court examines several factors when considering maintenance applications:
- Age and health
- Income and financial resources
- Ability to work or retrain
- Childcare responsibilities
- Standard of living during the relationship
- Length of the relationship
Maintenance can be:
- Periodic payments (weekly/monthly)
- Lump sum payment
- A combination of both
Unlike property settlements, which divide existing assets, spousal maintenance addresses ongoing financial support. It’s typically temporary, supporting a partner until they become financially independent.
Applications must be made within 12 months of divorce finalisation. The amount varies based on individual circumstances and can be modified if situations change, such as if the recipient remarries or becomes financially stable.
Support Options Available
Navigating a divorce can be emotionally challenging. As well as privately run support agencies and divorce lawyers, the NSW Government offers various support services for those going through divorce, including:
- Emotional counselling
- Financial guidance
- Legal assistance through organisations like Legal Aid NSW.
Taking advantage of these resources can help individuals manage the personal and practical aspects of ending a marriage while working through the formal legal process.
Legal support and early advice
While the legal procedure for divorce is straightforward, many people find value in seeking legal advice to address related matters such as property settlement and child custody arrangements.
Consulting with a specialised NSW Divorce Lawyer helps clarify rights and obligations before making important decisions.
Mediation and family dispute resolution
Mediation and family dispute resolution services help couples reach agreements without court intervention.
With the support of a neutral third party, both sides are encouraged to communicate openly, explore options, and work toward practical solutions that suit everyone involved, especially the children. It’s often a quicker, less stressful, and more cost-effective way to resolve disputes.
Help is available in cases involving family violence
For cases involving family violence, specialised support exists. Protection mechanisms such as Apprehended Violence Orders (AVOs) can be arranged, and supervised visitation options are available for children’s safety.
Support groups and counselling services can help people cope with the emotional aspects of separation. These services are particularly valuable for those experiencing high levels of stress or conflict during the divorce process.
Final Tips For Navigating Divorce
While it’s not always easy, it’s important to put emotion aside when it comes to a divorce application. Getting professional legal advice early can help keep things in perspective and save significant heartache and money down the track.
There are several things you can do to help reduce stress and help the proceedings go as smoothly as possible:
Make sure everything is documented clearly throughout the separation period. Keep records of important dates, communications, shared expenses, and parenting arrangements. Good documentation becomes valuable if disputes arise later.
Focus on cooperative solutions where possible to reduce stress, time, and legal fees. This is especially important when it comes to the impact on children. Prioritise their needs and keep conflict away from them. Courts in NSW place high importance on children’s best interests in all divorce-related decisions.
Be careful with financial decisions during separation. Avoid making major purchases, selling assets, or incurring new debts without legal advice. Financial choices made during this period can affect final settlements.
Follow up promptly. The 12-month time limit for applying for property settlements after a divorce is finalised is critical. Many people miss this deadline and lose their right to claim. Mark this date on your calendar once the divorce order is granted.
Most importantly, look after your emotional well-being. Divorce is stressful, and seeking support from counsellors or support groups can help manage the emotional impact.
When you’re ready, talk to a compassionate family law team to help you take the next step forward with confidence.
