Are You Eligible to Apply for Divorce?
Before applying, you must meet several key requirements.
1. A Minimum 12-Month Separation
You and your spouse must have been separated for at least 12 months. This demonstrates that the relationship has ended with no likelihood of resuming married life.
Importantly, separation doesn't always mean living in different homes. Some couples remain under the same roof during this period — this is known as "separation under one roof." In such cases, you'll need to show the Court that, despite sharing a residence, the relationship had genuinely ended. Supporting evidence such as an affidavit from a third party (a friend, family member, or counsellor) is usually required.
2. A Connection to Australia
You can apply for divorce in Australia if either you or your spouse:
- Is an Australian citizen, or
- Considers Australia your permanent home and intends to live here indefinitely, or
- Has lived in Australia for at least 12 months immediately before filing.
3. Proof of Marriage
A copy of your marriage certificate must be provided. If it is not in English, you'll need to submit a translated version along with an affidavit confirming its accuracy.
If you cannot locate your certificate, you'll need to provide alternative evidence of the marriage and explain why official documentation is unavailable. In some cases, a court declaration confirming the validity of the marriage may be required.
What About Children?
Divorce proceedings do not determine parenting arrangements, but the Court must be satisfied that children have been properly considered before granting a divorce. This means the Court needs to be assured that either there are no children of the marriage under 18, suitable arrangements have been made for their care, or there is good reason to proceed even if arrangements are not yet finalised.
As part of the application, you'll be required to provide detailed information about any children treated as members of the family prior to separation — regardless of whether they are biologically yours. This includes where the children live, how they spend time with each parent, and details of their education, health, and financial support.
If the Court considers the information incomplete or insufficient, it may adjourn your application until further details are provided. Seeking legal advice early avoids delays at this stage.
Divorce vs Other Family Law Matters
It is important to understand that divorce is separate from other legal issues arising from a relationship breakdown. Property division, spousal maintenance, and parenting arrangements are all handled independently through their own processes.
However, timing is critical. Once your divorce becomes final, you generally have 12 months to apply for financial or property orders. Missing this deadline means you'll need special permission from the Court to proceed — and that permission is not guaranteed. Acting before the divorce is final avoids this problem entirely. Our guide No Automatic 50/50: How Property Settlements Really Work sets out the two separate 12-month rules and how a settlement is actually decided.
Where property is involved, both parties must give full and frank financial disclosure before a settlement can be reached. Our article Full and Frank: Your Financial Disclosure Obligations in Family Law sets out what has to be disclosed and the consequences of getting it wrong.
You should also review your Will and other legal arrangements. A divorce affects the operation of your existing Will under Victorian law, so it is important to update your estate planning documents promptly. Our article on Succession Planning in Victoria covers what a complete update involves — Wills, powers of attorney, superannuation nominations, and more.
When Can You Remarry?
You cannot remarry until your divorce is officially finalised. In most cases, this occurs one month and one day after the divorce hearing. However, delays can happen — if your application is incomplete or the Court requires additional information, your hearing may be adjourned, extending the timeline.
It is important not to make firm wedding plans until your divorce order has been granted and the waiting period has passed.
Final Thoughts
Divorce in Australia is designed to be a clear and accessible legal process, but it carries significant implications for your property, finances, children, and future plans. Understanding the requirements and timelines from the outset can help you navigate the process more confidently and avoid unnecessary setbacks.
If you're unsure about any aspect of divorce — or how it may affect your situation — our team at Purcell and Purcell Pty Ltd is available to assist. We offer a free 30-minute initial consultation for all family law matters. Call us on (03) 9741 3777 or book online to get started.