No, automatic divorce after a long separation does not exist in Australia. Even after being separated for at least 12 months, couples must formally apply for a divorce through the Federal Circuit and Family Court of Australia. The law requires a proper divorce application, submission of court documents and sometimes a divorce hearing before a divorce order can be granted.
Understanding automatic divorce and separation in Australia
It is a common misconception that a long period of separation automatically ends a marriage. In Australia, a separation and a divorce are two different things. Separation simply means the couple is living apart or leading separate lives, but the legal bond of marriage remains until a court formally dissolves it.
Even after a long separation in Australia, a person must apply to the Federal Circuit and Family Court of Australia for a divorce. This can be either a sole application or a joint application with their former spouse.
Eligibility to apply for a divorce
To be eligible to apply for a divorce, the following requirements must be met:
- One or both parties must either be Australian citizens or regard Australia as their permanent home.
- The couple must have been separated for at least 12 months from the date of separation
- A marriage certificate must be filed to the Court. If this marriage certificate is not in English, there may be a requirement that it needs to be translated; and
- If the couple has continued living in the same home, evidence in the form of an affidavit will need to be provided to show that the marriage has ended. This can involve showing that both parties maintain separate finances, sleep in different rooms and lead distinct day-to-day lives, even while sharing the same home.
Filing a divorce application
Divorce applications are lodged through the Commonwealth Courts Portal, and may be submitted with or without the assistance of a Family Lawyer.
- A sole application is made by one party, and the court documents must be formally served on the other spouse. If service is not possible, for example, if the other party cannot be located or refuses to respond the court may allow substituted service.
- A joint application is made together by both parties, confirming their agreement that the marriage has broken down and that divorce is appropriate.
In many straightforward cases, a divorce is granted without the need to attend court. However, if there are children under 18, the court may require a hearing to ensure proper arrangements for their care are in place.
Divorce proceedings and the court process
Once a divorce application is filed, the filing fee paid, and (for sole applications) service has been completed, the court reviews the documents and may issue a divorce order. The divorce certificate is the official proof that the marriage has ended, and it enables both parties to legally remarry if they wish. This certificate is usually made available one month and one day after the hearing date or the date the order is granted.
During divorce proceedings, the court may also consider parenting arrangements for children under 18, ensuring the children’s best interests are protected. However, property settlement and financial matters are not automatically dealt with in a divorce and require separate applications or agreements.
There are several ways to finalise financial and parenting matters in Australian family law, and the process can vary depending on the circumstances. These pathways may include:
- Negotiation between the parties (with or without lawyers)
- Mediation or Family Dispute Resolution (FDR)
- Court proceedings, where necessary
Many couples reach agreements during a long separation, often before a divorce is granted. Most financial matters are finalised by:
- Consent orders
- A binding financial agreement
Most parenting matters are resolved through a parenting plan or consent orders.
Special considerations
Certain situations can complicate an otherwise straightforward divorce process. Couples who remain under one roof must show that, despite living together, their relationship has ended and that they lead separate lives. Courts may also consider parenting arrangements for children, including custody and visitation.
Couples married overseas may also need additional documentation to prove the marriage and separation. Some marriages will require annulment rather than a divorce, which makes a marriage retrospectively null and void. Unlike divorce, a Decree of Nullity is granted rather than a divorce certificate.
Annulments are quite rare in Australia and are only issued when a person was:
- already married when they married again
- married under duress
- married while underage,
- married without the capacity to agree to being married.
Why is there no automatic divorce in Australia?
There is no automatic divorce in Australia because both require legal certainty and due diligence regarding the process involved. Even after a long separation, marriage and divorce are still legal processes – like getting a driver’s licence – that require specific steps to be valid.
Couples must follow the formal divorce process to legally end their marriage, and matters such as property settlement, financial support, and parenting arrangements will also need to be addressed in a timely manner through the appropriate channels.
The law treats marriage as a formal, legally binding contract, and ending it has real legal consequences – so the courts require a deliberate process rather than assuming separation equals divorce.
Here’s why:
1. Proof and consent
Even if a couple has lived apart for years, the law needs formal confirmation that both parties understand the marriage is ending. This ensures the other spouse is notified and has a chance to respond, preventing disputes later.
2. Separation does not equal marriage breakdown in every case
Living apart doesn’t always mean the marriage is irretrievably over. By requiring a formal divorce application, the court can confirm that the marriage has truly broken down.
3. Clear legal records
A divorce order and divorce certificate provide definitive legal proof that a marriage has ended. Without a court-issued order, there’s no official record, which can affect property rights, remarriage and other legal matters.
4. Separate legal matters
Divorce only ends the marriage; issues like property settlement, financial support, and parenting arrangements are separate legal processes, which can crossover with the timing of divorce. An automatic divorce would risk leaving these matters unresolved or contested.
5. Consistency and fairness
The legal process of divorce ensures all parties have equal opportunity to act, respond or object. Even long-separated couples must apply, ensuring the legal system treats everyone consistently and fairly.
In short, automatic divorce doesn’t exist because the law prioritises clarity, legal certainty and fairness over convenience. Separation alone is not enough to create these protections.
Can you get a divorce without the other person signing in Australia?
It depends. You can apply for a sole divorce application without the other person’s signature. However, you must serve the divorce application and court documents to the other spouse so they are formally notified. If they cannot be located or refuse to acknowledge the application, the court may allow substituted service. The court will then review the application and may set a divorce hearing if needed before issuing a divorce order.
How long do you have to be separated to be legally divorced in Australia?
Under Australian law, you must have been separated for at least 12 months before you can apply for a divorce. The 12-month separation must be continuous from the separation date, although couples living under the same roof may still apply if they can prove they have separate lives.
What happens if you separate but don’t divorce?
If you separate but do not divorce, your marriage remains legally valid.
This means:
- You cannot remarry.
- Legal obligations of marriage, including financial support, property rights and inheritance entitlements, still exist.
- Any agreements about children, property or financial support may require separate legal arrangements, such as a binding financial agreement or court orders.
Separation without divorce is legally recognised but does not dissolve the marriage.
What happens after 5 years of separation?
Even after five years of separation – or even twenty – a marriage does not automatically end. You still need to apply for a divorce through the Federal Circuit and Family Court of Australia. A long separation is not necessary to prove that the marriage has irretrievably broken down, nor does it automatically grant a divorce or resolve property, financial or parenting matters.
Steps to get a divorce in Australia
In summary the process to get a divorce in Australia involves the following:
- Check your eligibility – You must have been separated for at least 12 months, and one spouse must be an Australian citizen, permanent resident, or regard Australia as their permanent home.
- Prepare your documents – Gather your marriage certificate, ID, and translations (if needed).
- Apply online – Lodge a sole or joint application through the Commonwealth Courts Portal and pay the filing fee.
- Serve papers (if sole application) – The other spouse must be formally served with the divorce documents.
- Court hearing – The court reviews your application. A hearing may be needed if there are children under 18 or there has been a period of separation under the same roof.
- Divorce finalised – If approved, a divorce order is made, and the divorce certificate is issued one month and one day later.
Seeking legal advice about divorce after a long separation in Australia?
Legal advice is recommended during separation or divorce, even for simple and amicable matters. Our experienced Family Lawyers can assist with the divorce process, clarify common misconceptions about automatic divorce under Australian law, and provide support with property matters and parenting arrangements, ensuring that all court documents are properly completed and submitted in a timely manner. Get in touch with our team today to chat about how we can assist you.