Worked Examples and Checklists
Divorce and consent orders in Australia: the steps, documents and fees, from separation to orders
How to apply for a divorce in Australia, the 12-month separation rule, separation under one roof, serving papers, and how consent orders formalise property, super and parenting.
To divorce in Australia you must show the marriage has broken down irretrievably, which the Family Law Act proves by 12 months' separation with no reasonable likelihood of getting back together (s 48). You apply online to the Federal Circuit and Family Court of Australia (FCFCOA) through the Commonwealth Courts Portal, either jointly or alone, pay the filing fee (a reduced fee is available to eligible concession and hardship applicants), serve the other party if you apply alone, and the divorce order generally takes effect one month after it is made (s 55). A divorce does not divide property or deal with children. Those are separate: most separating couples formalise their agreement with consent orders, a separate application with its own fee. Remember the clock: property and spousal maintenance applications must be filed within 12 months after the divorce order takes effect (s 44(3)).
Court fees are reviewed regularly, usually from 1 July. Check the current fee list on the FCFCOA website before filing.
Step by step: the divorce
| Step | What to do | Documents |
|---|---|---|
| 1. Separation | Live separately for at least 12 months. You can be separated "under one roof" if your relationship has ended | Evidence of separation; for one-roof separation, affidavits from you and ideally a third party |
| 2. Short marriage check | No longer needed: the rule that couples married less than 2 years must attend counselling (former s 44(1B)) was repealed from 10 June 2025. Check the FCFCOA form instructions | None |
| 3. Apply | File an Application for Divorce online, jointly or as a sole applicant | Marriage certificate (with an English translation if needed), proof of citizenship, residence or domicile |
| 4. Pay | Pay the filing fee or apply for the reduced fee | Concession card or hardship evidence |
| 5. Serve | Sole applicants must serve the other party within time limits before the hearing (longer if they are overseas) | Affidavit of service, or acknowledgment of service |
| 6. Hearing | Often decided without attendance. Sole applicants with children under 18 may need to attend | |
| 7. Order takes effect | Usually one month after the order | Divorce order available on the portal |
Children and the divorce
The court must be satisfied that proper arrangements have been made for children of the marriage under 18 before granting a divorce. It does not make parenting orders in the divorce application; it only checks arrangements exist. Parenting orders need a separate application, generally after family dispute resolution and a section 60I certificate, except in cases such as family violence or urgency.
Consent orders: formalising the settlement
Consent orders are court orders made with both parties' agreement. They can cover:
- property settlement, including who keeps the house and who pays which debts
- superannuation splitting (the fund must be given notice of the proposed orders first)
- spousal maintenance
- parenting arrangements
The parties file an Application for Consent Orders and the proposed orders (the "minute"). A registrar or judge reviews them and makes them if satisfied that the property orders are just and equitable and the parenting orders are in the children's best interests. No hearing is usually needed. Each party should get legal advice, but it is not compulsory for consent orders (unlike binding financial agreements).
Consent orders versus a binding financial agreement
| Consent orders | Binding financial agreement | |
|---|---|---|
| Who checks it | The court | Nobody at the time; validity tested only if challenged |
| Legal advice | Recommended, not required | Each party must get independent legal advice and a signed statement |
| Cost | Court filing fee plus any legal fees | Two lawyers' fees, often higher in total |
| Privacy | Filed with the court, not public | Private contract |
| Risk | Can be set aside only on limited grounds (s 79A) | Can be set aside for fraud, non-disclosure, unconscionable conduct, hardship and other grounds (s 90K) |
| Super | Splitting orders | Superannuation agreements |
Worked timeline (illustrative)
Mia and Sam separate on 1 February 2025 and agree the house will be sold.
- 1 February 2026: 12 months' separation complete. They file a joint divorce application on 10 February 2026.
- April 2026: the divorce order is made (timing depends on the court's list); it takes effect one month later, say on 22 May 2026.
- Property deadline: 12 months after the divorce takes effect: 22 May 2027.
- They agree a 50/50 division and a $40,000 super split in April 2026, give the fund notice, and file an Application for Consent Orders in June 2026, well before the deadline.
Had they waited to deal with property until mid-2027, they would have needed the court's leave to apply. See missed family-law time limits.
What it costs (illustrative)
| Item | Cost |
|---|---|
| Divorce application filing fee | Set by regulation; check the FCFCOA fee list. A reduced fee applies for eligible applicants |
| Consent orders filing fee | Set by regulation; check the FCFCOA fee list |
| Process server for a sole application | Varies by location |
| Legal fees for drafting consent orders | From a few thousand dollars for a simple matter, more if super splitting or complex assets are involved |
| Family dispute resolution | Free or low-cost at Family Relationship Centres and Legal Aid; private mediators charge more |
Other things to update after the divorce
- Will: divorce revokes gifts to a former spouse in most states, but write a new will anyway.
- Super nominations: not revoked by divorce.
- Enduring power of attorney: some states revoke an appointment of a former spouse on divorce, but replace it.
- Joint accounts and joint tenancy: close or sever as advised.
See the estate planning and separation checklist.
FAQ
Do we have to agree on property before divorcing?
No. You can divorce first, but the 12-month property deadline then starts when the divorce takes effect.
Can I divorce if I married overseas?
Yes, if you meet the jurisdiction rules: generally that one party is an Australian citizen, is domiciled in Australia, or has lived here for 12 months and intends to keep living here.
Can we separate under the same roof?
Yes, but you need to give the court more evidence, usually affidavits explaining how your lives changed.
Can consent orders be changed later?
Property orders are final except in limited situations (s 79A), such as fraud, non-disclosure or a significant change involving the children. Parenting orders can be changed if circumstances change.
Sources
- Federal Circuit and Family Court of Australia — divorce, consent orders, fees and the Commonwealth Courts Portal
- Federal Register of Legislation — Family Law Act 1975, ss 44, 48, 55, 79A, 90K
- Family Relationships Online — family dispute resolution and Family Relationship Centres
- Related: property settlement example, super splitting, child support
