Divorce can be one of the most stressful and emotionally draining experiences a person can face. Beyond the emotional strain, navigating the legal system and meeting all the necessary requirements can feel overwhelming.
Each step in the process must be carefully managed to avoid delays and ensure the best outcome.
If you’re living in Queensland or further abroad and contemplating divorce then this guide offers a clear overview of the laws, procedures, and considerations involved.
Whether it be property division, parenting plans or domestic violence concerns, understanding the essentials will help you prepare for this transition.
If you need family law guidance, Drakos & Company Solicitors can provide professional support to help you through every step of the process.
Table of Contents
Legal Grounds for Divorce in Queensland
No-Fault Divorce System
Australia’s no-fault divorce system reflects the understanding that relationships may end for various reasons, often beyond the control of either partner. Under this system, the breakdown of the marriage is the only legal requirement to seek a divorce.
This approach ensures that individuals do not need to provide evidence of wrongdoing, such as infidelity, abuse, neglect, or abandonment.
This shift from fault-based divorce models—once common in many legal systems—encourages a less confrontational process. The no-fault system benefits couples by reducing conflict during the separation and legal proceedings.
By focusing only on whether the marriage has irretrievably broken down, it creates a framework for constructive negotiation on key matters such as parenting arrangements and financial settlements.
This is particularly important when children are involved, as minimising blame fosters better co-parenting relationships and a smoother transition into post-divorce family life.
Proof of Irretrievable Breakdown
The only proof required under the no-fault system is that the marriage has experienced an irretrievable breakdown, demonstrated by 12 months of continuous separation.
During this period, the couple must live separately, either physically or functionally, with no intention of resuming the relationship. The separation serves as a cooling-off period, ensuring that the decision to divorce is deliberate and not made impulsively.
Promoting Cooperation and Practical Solutions
One of the most significant advantages of the no-fault divorce system is that it promotes cooperation between the parties. By eliminating the need to assign blame, the system reduces the emotional burden and encourages practical solutions.
This is especially beneficial in situations involving children, where high levels of conflict can negatively impact their well-being. A no-fault approach helps parents focus on the best interests of the children and reach agreements on custody and parenting arrangements more effectively.
Additionally, the no-fault system simplifies the court process by avoiding the need for lengthy legal battles over who was at fault. This makes the process faster, less expensive, and more accessible to couples seeking to move forward with their lives.
Arguably, it also reflects modern social values, recognising that not all marriages end due to deliberate wrongdoing and that both parties deserve the opportunity to rebuild their lives without stigma.
Focusing on the Future
Ultimately, the no-fault divorce system allows couples to focus on creating a sustainable future after separation, rather than dwelling on past grievances.
It encourages amicable negotiations on key issues, such as dividing property and determining a parenting plan for the children, and ensures that both partners can participate in the process without feeling blamed or judged.
With a system that prioritises constructive outcomes over conflict, families can transition more smoothly into the next phase of their lives. This streamlined approach also ensures that resources, including time and legal costs, are spent resolving practical matters rather than litigating past events.
The no-fault divorce system in Queensland exemplifies the shift toward a more compassionate, forward-looking approach to family law.
By focusing on the irretrievable breakdown of the marriage and emphasising cooperation, it aims to provide couples with the tools to rebuild their lives and co-parent effectively, ensuring that the divorce process serves as a foundation for positive change rather than conflict.
With the right support—such as mediation services or professional legal advice—couples can navigate the divorce process more efficiently and reach agreements that work for everyone involved.
12-Month Separation Requirement In Detail
The 12-month separation period serves as a critical requirement for obtaining a divorce in Queensland and throughout Australia.
This period ensures that both parties have sufficient time to reflect on the decision to end the marriage, reducing the risk of impulsive divorces. It also demonstrates to the court that the marriage has broken down irretrievably, which is the only ground for divorce under Australia’s no-fault system.
The separation requirement strikes a balance between protecting the institution of marriage and respecting the right of individuals to end relationships that no longer serve them.
By ensuring that separation is intentional and continuous, the legal system promotes thoughtful decision-making and reduces conflict during divorce proceedings.
Understanding the legal criteria and documenting the separation properly will help ensure a smooth divorce process, allowing both partners to move forward confidently toward a new chapter in their lives.
When Does Separation Begin?
The separation period begins when at least one partner decides that the marriage is over. Importantly, this decision does not need to be mutual.
If one spouse communicates their intention to end the marriage, the separation officially starts, even if the other partner disagrees or hopes to reconcile.
It’s also essential that the intention to separate is clear and communicated explicitly, either through words or actions, such as moving to a different bedroom, relocating to another residence or handling finances independently.
Separation marks a shift in the relationship dynamic—both partners may still live under the same roof, but they no longer act as a married couple.
This includes no longer engaging in shared activities or fulfilling spousal duties, such as cooking for one another or attending social events together as a couple.
The separation period requires more than emotional distance—it must also involve practical changes that demonstrate the end of the marriage.
Reconciliation Attempts
Every relationship is different and some circumstances can be more complex for partners to navigate than others.
This is why the Family Law Act 1975 allows couples to make attempts at reconciliation for up to three months without restarting the separation clock.
This is designed to give couples a chance to explore whether the marriage can be repaired, especially in cases where emotions run high or where there are shared financial or parenting responsibilities.
If the reconciliation attempt lasts for less than three months and ultimately fails, the original separation period remains valid, and the couple can continue toward divorce. However, if reconciliation extends beyond three months, the 12-month separation period resets, and a new separation timeline must begin.
This rule ensures that couples take the time necessary to carefully evaluate their decision before filing for divorce, emphasising that divorce is meant to be a considered, permanent choice.
Separation Under One Roof
In modern relationships, it is common for couples to continue living together after separating, particularly due to financial constraints or shared responsibilities, such as caring for children.
This is known as separation under one roof, and it is recognised by Australian family law. However, proving separation under the same roof can be more complex, as the couple must demonstrate to the court that their relationship has ended in all meaningful ways, despite sharing a residence.
What Evidence is Required?
When applying for divorce under these circumstances, both partners need to provide an affidavit outlining the details of their separation.
An affidavit is a legal document in which each party confirms that they have been separated, describing how their living arrangements changed after the separation.
This may include information about:
Separate sleeping arrangements, such as using different bedrooms.
Independent finances, with separate bank accounts or contributions to household bills.
Changes in household responsibilities, like cooking or cleaning for oneself rather than for the other spouse.
Minimal social interaction, such as attending events or gatherings separately.
In addition to the couple’s own affidavit, the court may require third-party statements from family members, friends, or professionals (such as a family doctor or counselor) to verify that the couple has been living separately under one roof.
These witnesses must confirm that the relationship has ended, and the couple is no longer functioning as a married couple, even though they share the same address.
Challenges of Separation Under One Roof
Proving separation under one roof can be more legally challenging than traditional separation, as it involves subjective evidence that may be open to interpretation.
Couples must be careful to maintain clear boundaries during this period, ensuring that their actions reflect the end of the relationship. Engaging in behaviours that resemble a married relationship—such as going on holidays together or regularly sharing meals—could jeopardise the separation claim.
Furthermore, courts can scrutinise financial arrangements to determine whether the couple is genuinely separated. If the couple maintains joint bank accounts or continues paying bills as a unit, the court may question whether the relationship has ended.
This makes it essential to establish and document financial independence during the separation period.
The Role of Legal Guidance
Navigating separation under one roof requires careful planning and documentation. Engaging a solicitor early in the process can help ensure that the separation is properly documented and that the necessary evidence is submitted with the divorce application.
A solicitor can also assist with drafting affidavits, ensuring that they meet the court’s requirements. Proper legal advice can help avoid complications or delays, especially in situations where the couple's living arrangements may raise questions.
Filing for Divorce
Filing for divorce in Queensland and elsewhere in Australia involves several legal steps and requirements, and ensuring that all documentation is properly submitted can prevent unnecessary delays.
The Federal Circuit and Family Court of Australia (FCFCA) handles all divorce applications, with the process now largely streamlined through an online portal. Whether you file jointly with your spouse or as an individual, understanding the application process helps ensure a smooth transition through this critical phase.
Who Can Apply?
To apply for divorce in Queensland, at least one of the following criteria must be met:
Australian Citizenship: Either you or your spouse must be an Australian citizen. This applies whether you were born in Australia, acquired citizenship by descent, or obtained it through naturalisation.
Permanent Residency: You or your spouse must hold permanent resident status in Australia at the time of filing. Permanent residents are individuals who have been granted the right to live and work in Australia indefinitely but are not citizens.
Continuous Residence for 12 Months: If neither spouse is a citizen or permanent resident, one of you must have lived in Australia for at least 12 consecutive months immediately before submitting the divorce application. This ensures that you have a clear connection to the jurisdiction.
Meeting one of these criteria allows you to file for divorce even if your spouse currently lives outside Australia or has moved overseas after separation.
How to Apply for Divorce
Divorce applications are submitted through the Commonwealth Courts Portal, a secure online platform that simplifies the process by allowing users to upload documents, track their case status, and receive court notifications.
The Commonwealth Courts Portal provides an accessible and transparent system for managing divorce proceedings.
Required Documents for Divorce Applications
When filing for divorce, you need to provide several key documents, including:
Marriage Certificate: A certified copy of your marriage certificate proves that you were legally married. If your marriage certificate is not in English, you will need to provide an official translation.
Proof of Separation: For cases involving sole applications or separation under one roof, you must submit affidavits or other evidence to demonstrate the breakdown of the marriage.
Acknowledgment of Service: If filing a sole application, the respondent must complete and return an acknowledgment of service, confirming that they have received the divorce papers or an affidavit is filed by a process server demonstrating service has been effected.
It’s essential to ensure that all documents are complete and accurate to avoid delays and additional costs. If any required documentation is missing or incorrect, the court may request additional information or reject the application.
The Divorce Process
Once your application is submitted, the court will review it to ensure that all legal requirements are met. If everything is in order, the court schedules a hearing date.
In some uncontested cases, neither party is required to attend the hearing in person unless there are unresolved issues, such as disputes over separation dates or parenting arrangements.
After the court grants the divorce, it becomes finalised one month and one day later. This waiting period provides a final opportunity for any issues or disputes to be raised before the divorce takes legal effect. If no disputes arise, the court issues a Divorce Order, officially ending the marriage.
Joint vs. Sole Applications
Joint Applications
A joint application occurs when both spouses agree to the divorce and file the application together. This option simplifies the process, as there are no disputes over service or separation dates. Joint applications are typically faster and less contentious, as both parties are aligned in their intention to end the marriage.
Since no service of papers is required, the court can proceed with minimal delays. Joint applications are ideal for couples who have already agreed on key matters, such as child parenting arrangements and property division.
Sole Applications
In a sole application, only one spouse initiates the divorce process. The applicant should serve the other party with divorce papers, ideally through a professional process server. This ensures that the respondent is formally notified of the application and given the opportunity to respond.
If the respondent refuses to acknowledge receipt or cannot be located, the applicant can apply for substituted service. If granted by the Court, substituted service allows the papers to be delivered through alternative methods, such as:
Email or messaging platforms.
Social media platforms (if the court approves it).
Public notices, such as advertisements in newspapers.
In situations where all reasonable efforts to contact the respondent have failed, the court may grant dispensation of service, allowing the divorce to proceed without formal notification. This ensures that applicants are not unfairly held back if their spouse is deliberately avoiding contact.
Potential Complications in the Divorce Process
Even though the divorce process can be straightforward in some cases, certain challenges may arise.
Incorrect or incomplete documents: Applications with missing information or improperly completed forms can delay proceedings.
Disputes over separation dates: If the respondent disagrees with the separation timeline provided by the applicant, the court may require evidence, such as emails or text messages, to verify the separation date.
Delays in serving papers: If the respondent avoids service or is difficult to locate, the application may be delayed until substituted service or dispensation is approved by the court.
Having a solicitor guide you through the application process can prevent these challenges and ensure your case proceeds smoothly. Solicitors can assist with preparing documents, serving papers, and handling any disputes that may arise.
What Happens After the Divorce is Finalised?
Once the divorce is finalised, both parties receive a Divorce Order. This document officially ends the marriage, allowing both individuals to remarry if they wish.
It’s important to note that a divorce order does not automatically address other legal matters, such as parenting arrangements or property division as these issues must be resolved separately, either through mediation or court orders.
Additionally, property settlements and financial arrangements must be finalised within 12 months of the divorce. Failing to address these matters promptly may require court permission to proceed, adding further complexity to the process.
This makes it essential to begin discussions about parenting and financial arrangements as early as possible. It is therefore common for divorce proceedings to be progressed concurrently with legal proceedings or binding financial agreements dealing with these other aspects.
The Importance of Legal Assistance in Filing for Divorce
While the divorce process may seem straightforward, navigating the legal requirements and ensuring that all documents are correctly filed can be challenging, especially in cases involving children, property disputes, or domestic violence.
Engaging a solicitor ensures that your application is accurate and complete, minimising the risk of delays or legal complications. Solicitors can also handle communication between spouses, reducing stress and preventing conflict during the divorce process.
If disputes arise over service, separation dates, or parenting arrangements, having legal representation ensures that your interests are protected and your case is presented effectively in court.
Filing for divorce in Queensland requires careful attention to detail and adherence to legal procedures. Whether filing a joint or sole application, understanding the requirements and seeking professional advice can help ensure a smooth and efficient process.
Due to the requirement to resolve ancillary relationship issues such as property separation within 12 months of the divorce, it becomes extremely important to ensure you have obtained the appropriate legal advice on those aspects as well.
Failure to do so could mean that some of your rights or entitlements are unintentionally prejudiced due to lack of awareness and/or passage of time.
If you need guidance on preparing your application, handling disputes or progressing a property settlement or child care arrangements, Drakos & Company Solicitors are here to help, providing family law support every step of the way.
Parenting Plans and Parenting Orders
Parenting Plans vs. Consent Orders
Parenting decisions need to focus on the best interests of the child. Parents can choose between Parenting Plans or Consent Orders to outline their child’s care arrangements:
Parenting Plans: Informal, written agreements between parents that outline how the child will be cared for. These plans are flexible but not legally enforceable.
Consent Orders: Legally binding agreements approved by the court. They provide greater security and ensure both parents comply with the agreed terms. If a parent breaches a Consent Order, the other parent can seek enforcement through the court.
Parents are encouraged to use mediation to resolve parenting disputes and reach agreements that are in the child’s best interests.
Child Support Obligations
The Child Support Agency (CSA) manages child support payments, ensuring both parents contribute to the child’s upbringing. Child support amounts are calculated based on:
Each parent’s income.
The number of children involved.
The time spent with each parent.
In addition to regular payments, parents may need to contribute to special expenses such as school fees or medical costs. If a parent fails to meet their obligations, the CSA can enforce payments by garnishing wages or restricting the parent’s travel rights, including suspending their passport.
Property Settlement and Financial Matters
How Courts Divide Property
The goal of property settlements is to ensure a just and equitable division of assets. Courts consider several factors, including:
The financial contributions of both partners (e.g., income, property).
Non-financial contributions, such as caregiving or homemaking.
The length of the marriage or relationship.
Each partner’s future needs, including their health, age, and earning capacity.
Property settlements cover not only real estate but also superannuation, savings, businesses, and debts. Courts aim to provide both parties with a fair outcome based on their individual circumstances.
Superannuation and Property Division
Superannuation is considered property in Australian law and can be split between partners as part of a property settlement. Even though superannuation may not be accessible until retirement, it plays a significant role in ensuring both partners receive a fair share of the marital assets.
Splitting superannuation requires an order of the court or formal agreements that comply with superannuation regulations, and both parties must seek independent legal advice before finalising the settlement.
These agreements take the form of a ‘Binding Financial Agreement’ and are essential to resolving a property settlement in an efficient and binding way. If you do not enter into a compliant agreement then there is leeway for a previous spouse to advance a claim in the future.
Time Limits for Property Settlement
Married couples: Property settlements must be completed within 12 months of the divorce being finalised.
De facto couples: Settlements must be finalised within 2 years of separation.
If these deadlines are not met, the court’s permission is required to proceed, adding complexity to the process. It’s essential to start negotiating financial matters as early as possible to avoid unnecessary delays.
Domestic Violence and Divorce
Domestic Violence Orders (DVOs)
Domestic violence can significantly impact the divorce process. Victims can apply for a Domestic Violence Order (DVO) to protect themselves and their children. A DVO can restrict the abusive partner from contacting the victim or accessing shared spaces. Violating a DVO is a serious offense, resulting in criminal penalties.
The court takes any history of domestic violence into account when determining parenting arrangements, prioritising the safety and well-being of the child. In some cases, the court may limit the abusive parent’s access to the child or require supervised visits.
Impact on Financial Settlements
Domestic violence can also influence property settlements, as courts consider the economic and emotional impact of the abuse on the victim. A solicitor can help ensure that victims receive fair compensation and adequate legal protections throughout the settlement process.
They can also assist in ensuring that any power imbalance or adverse emotional pressure in negotiations are minimised.
Common Challenges and Mistakes to Avoid
Incomplete Applications
One of the most common mistakes is submitting incomplete or incorrect applications. Missing documents or errors in the application can delay the divorce process and increase legal costs.
Applicants must ensure that all forms are properly filled out and submitted with the required documentation, such as marriage certificates and proof of service.
Delaying Custody or Property Agreements
Procrastinating on property or parenting arrangements can lead to long-term complications. Mediation is a valuable tool that can help couples reach agreements early in the process, avoiding the need for lengthy court battles.
Agreements reached through mediation can be formalised as Consent Orders, providing legal certainty and enforceability.
The Importance of Legal Representation
Why Hire a Solicitor?
Divorce involves complex legal and financial matters, making professional legal representation essential. A solicitor ensures that your rights are protected, documents are filed correctly, and negotiations are handled efficiently.
They also provide comfort in knowing that you are navigating the process correctly.
Legal representation is especially important in high-conflict cases or those involving domestic violence.
Additionally, property settlements that comprise of a large number of assets become complex as it becomes more difficult for partners to reach a division that is fair and equitable.
In these circumstances, an experienced solicitor can make a huge difference in obtaining an outcome that is favourable and free from undue influence.
A solicitor acts as an advocate, ensuring that your interests are prioritised and that you receive a fair outcome.
How Drakos & Company Solicitors Can Help
Addressing your divorce on a comprehensive basis, including financial and parenting matters, and seeking professional advice to do so will help you avoid common pitfalls. Don’t ‘let the matter lie’ until a later date as you may prejudice your rights and entitlements unintentionally.
At Drakos & Company Solicitors, we provide family law services tailored to your unique situation. We have experienced solicitors who will take the time to understand your relationship, needs and desired outcomes.
Whether you need assistance with divorce applications, property settlements, or parenting matters, our experienced team will guide you through every step of the process.
Our goal is to help you achieve a positive outcome while minimising stress. With our support, you can move forward with confidence and peace of mind.