Family Law in Australia: Divorce, Children, Property and Time Limits

Divorce

• The only ground is that the marriage has broken down irretrievably, shown by at least 12 months' continuous separation before you file (the court says 12 months and 1 day). Fault does not matter. One reconciliation that ends within 3 months does not restart the count, but the time back together is not counted.
• Separated under one roof: you can, but you need extra evidence by affidavit, ideally including someone else's.
• Who can apply: either spouse alone, or both together, if either is an Australian citizen, treats Australia as their permanent home, or has lived here for the 12 months before filing. Since 10 June 2025, couples married under 2 years no longer need a counselling certificate.
• How: outside Western Australia, online through the Commonwealth Courts Portal, with your marriage certificate. A sole application must be served on your spouse at least 28 days before the hearing (42 if overseas). Most divorces are decided without anyone attending; since 31 August 2026, hearings that need attendance are by video.
• Children under 18: the court must be satisfied proper arrangements have been made for them.
• The divorce takes effect one month after the order; then either of you can remarry. A divorce does not settle children's arrangements or property.

Time limits

After the deadline you need the other party's consent or the court's permission, which mainly turns on whether you or a child would suffer hardship otherwise. Ask for permission in your application, with an affidavit.

Children and parenting arrangements

• The child's best interests are paramount. The court considers safety first (from family violence, abuse and neglect), the child's views, the child's needs, each carer's capacity to meet them, the benefit of relationships with parents and important people where safe, and anything else relevant; and for Aboriginal and Torres Strait Islander children, their right to enjoy their culture.
• Since 6 May 2024 there is no presumption of equal shared parental responsibility, and the court no longer has to consider equal or substantial time. Orders can give parents joint or sole decision-making on major long-term issues such as education, religion, health and name.
• Family dispute resolution first: the court will not accept a parenting application without a certificate from a family dispute resolution practitioner, or an exemption the court grants, for example for urgency, or where it is satisfied there are reasonable grounds to believe there has been, or is a risk of, child abuse or family violence.
• Changing a final order: the court first asks whether circumstances have significantly changed.
• Breaches of parenting orders: the court can order make-up time, vary orders or send parents to a program; for a breach without reasonable excuse, a bond or compensation; proved beyond reasonable doubt, a fine of up to 60 penalty units or, as a last resort, up to 12 months' jail. Community service orders are no longer available.
• Grandparents, and anyone concerned with the child's care, can apply.

Property and spousal maintenance

• The steps (written into the Act since 10 June 2025): identify the property and debts; assess each party's financial and non-financial contributions, including as homemaker and parent; consider current and future circumstances; and make an order only if it is just and equitable.
• New factors: the effect of family violence on a party's contributions and future circumstances (economic or financial abuse is now listed as family violence), deliberate or reckless waste, debts, and housing for the children. Superannuation is property and can be split. The court can decide who keeps a pet, or order it transferred or sold, but cannot order shared ownership or shared care.
• De facto couples generally need to have lived together 2 years, or have a child, or meet another listed test. In Western Australia, de facto property is decided under WA law, which has not adopted the June 2025 changes.
• Spousal maintenance depends on one party being unable to support themselves adequately (because of the care of a child, age, incapacity or another adequate reason) and the other being reasonably able to pay; a difference in income is not the test.
• Both parties must give full and frank disclosure of their finances, and must genuinely try dispute resolution before filing, where it is safe.
• Financial agreements need independent legal advice for each party before signing.

Urgent situations

If a child is at risk of harm or of being taken, the court can list a case urgently, and in extreme cases act without notice to the other party. To stop a child being taken overseas, the court can order that the child not be removed and ask the Australian Federal Police to put the child on the Family Law Watchlist. Out of hours, if a child may be taken out of Australia before the next working day, call the court on 1300 352 000. If anyone is in danger right now, call 000. See urgent parenting orders.

Which court

• The Federal Circuit and Family Court of Australia hears family law outside Western Australia. Division 2 is the entry point for all cases and decides most of them, including every divorce; Division 1 hears the most complex cases and appeals.
• Western Australia: the Family Court of Western Australia handles divorce and all family law; WA law governs de facto couples there, and WA adopted the 2023 parenting changes from 10 February 2025.
• Domestic violence orders are made by state and territory courts; the family courts must take them into account.

Child support

Services Australia (Child Support) assesses child support using a formula set by law. Either parent can ask for a change of assessment because of special circumstances, and both can object to decisions. A binding child support agreement needs independent legal advice for each party; a limited agreement does not. Where the child support law applies, parenting orders cannot deal with child maintenance.

Costs

In family law each party usually pays their own legal costs. The court can order otherwise, considering matters such as the parties' means, their conduct, breaches of orders, offers to settle, and whether a party was wholly unsuccessful.