This is one of the most common questions we hear from people starting the separation process. For many, the idea of going to court feels overwhelming, expensive, or unnecessary, especially when both parties agree to move on.
The good news is that you can get a divorce without going to court under most circumstances.
In Australia, many divorces are finalised online, without the need for you to attend a hearing in person. When you are ready to begin the process, you can apply jointly or solely. Whether you need to go to court depends on the issues involved in your case and whether your paperwork has been completed correctly. If a court attendance is required, one of our experienced family lawyers will attend on your behalf as part of our fixed fee, without additional cost.
What “Going to Court” Means in Divorce
When people think about divorce and court, they often picture a formal courtroom hearing with lawyers arguing. In reality, divorce in Australia is often not contested.
“Going to court” doesn’t always mean standing in front of a judge. Most divorce applications are handled by the Federal Circuit and Family Court of Australia via the Commonwealth Courts Portal.
In these cases, the Court is still involved, but you don’t have to physically attend a hearing. A court appearance is only needed in specific circumstances, which we’ll explain later in this guide.
The Legal Requirements for Divorce in Australia
Before you can apply for divorce, certain conditions must be met under Australian family law. These requirements are designed to make sure the marriage has broken down irretrievably and that the Court has the authority to make the order.
The main requirements are:
- Separation for at least 12 months: You and your spouse must have been separated for at least 12 months before applying. It doesn’t matter who ended the relationship. You can even be “separated under one roof,” but no longer live as a couple.
- Connection to Australia: At least one spouse must be an Australian citizen, be born in Australia, or regard Australia as their home and intend to live here indefinitely.
- Marriage certificate: You must provide your official marriage certificate. If it’s in another language, you’ll also need a translation and an affidavit confirming its accuracy.
If these requirements are met, you can apply for a divorce. Meeting them doesn’t always mean you need to attend court, but they are the legal foundation for any application.
When Can Divorce Be Done Without Going to Court
Many of our clients often ask us, “Do all divorces go to court?” In many cases, you won’t need to attend court at all. The Court will still process and approve the application, but everything is handled online without a physical hearing.
You can usually avoid going to court if:
- You make a joint application: When both spouses agree to apply together, the Court doesn’t require either party to attend.
- You know the location : If there are no children under 18, the Court generally finalises the divorce on the paperwork alone.
- The application isn’t disputed: If your spouse doesn’t contest the divorce and all the documents are in order, there’s no need for a hearing.
- You meet all legal requirements: As long as the separation period, residency, and marriage certificate requirements are met, the Court can grant the divorce without you appearing.
In these situations, the divorce order is made electronically and sent to both parties. It will take effect one month and one day after the order is granted.
When Court Attendance Is Required
While many divorces are finalised without a hearing, there are some situations where you or your legal representative will need to attend Court. These include:
- Disputed applications: If your spouse opposes the divorce or challenges details in your application, you may need to appear to resolve the issue.
- Requests for further information: If the Court believes the paperwork is incomplete, unclear, or needs supporting evidence, it may direct you to attend and provide clarification.
- Service: If you are having difficulty serving the other party or have not served them in line with the Court Rules.
- Sole Application: If you are not aware of the location of the other party you or your lawyer may need to attend Court.
- Separation under one roof: If you lived in the same home during your separation, you’ll need extra evidence, such as affidavits, to prove you were genuinely separated. The Court may ask for clarification, which can lead to a hearing.
- Incorrect or incomplete paperwork: Mistakes in the application or missing documents can delay the process. In some cases, this may require a court appearance to fix.
- Other family law issues: Divorce only ends the marriage. Parenting and property matters are separate. You may need additional consent orders or agreements to resolve these issues formally.
In these situations, attending court does not mean a lengthy trial. It is usually a short hearing where the Court checks the facts before making a decision.
How to Apply for Divorce Without Physically Going to Court
If your circumstances mean you don’t need to attend a hearing, we will let you know. If a court hearing is required in your case, our fixed fees cover you for a lawyer to attend the hearing on your behalf. Here’s how it works:
1. Supporting documents
You’ll need your marriage certificate and depending on your circumstances other documents may be required. If supporting documents are in another language, you must provide a translation and affidavit.
2. Choose how to apply
Joint application: Both spouses apply together, which avoids a hearing in most cases.
Sole application: One spouse applies.
3. Advice, preparation, signing and lodgment
Our experienced Team will assess your case, provide advice, gather the relevant documents and information required and prepare your divorce papers. Once executed, we will lodge your application with the Court to formally begin your divorce proceedings.
4. Serve documents (sole applications only)
If you file alone, your former spouse must be formally served with the divorce papers. This step is not required in a joint application. Our service agent can arrange formal service in line with the Court Rules across Australia for a single fixed fee.
5. Wait for the Court’s decision
The Court will review your application and, if approved, grant a divorce order.
6. Divorce becomes final
The divorce order takes effect one month and one day after it is granted. You can then download the order from the online portal.
With the right preparation, this process avoids the stress of a court appearance while still giving you a legally binding divorce.
Costs and Timeframes Comparison: With vs Without Court
Whether or not you need to attend court affects both the cost and how long your divorce takes.
Divorce requiring court attendance:
- Timeframe: May take longer, as hearings must be scheduled and the Court may request more information. This can extend the process by an extra 1-3 months, and in complex cases, the process can stretch to six months or more.
Factor | Without Court Attendance | With Court Attendance |
Court filing fee | $1,125 (reduced fee available for concession holders) | $1,125 (same fee applies) |
Legal costs | Often lower. Many firms offer fixed-fee packages for straightforward joint applications without children under 18 | Generally higher. Hearings require extra preparation & legal representation. A dispute can also increase costs |
Timeframe | 2–3 months to be processed and approved; divorce finalised one month + one day later | Court requires extra information + hearings, which can extend by 1-3 months. & complex cases may take 6+ months. |
Why the difference matters:
Avoiding a court appearance usually means a faster, simpler, and less expensive process. If your circumstances are straightforward, you’re likely to save both time and money.
At Family Law Resolutions, we make this process even easier with clear guidance and fixed-fee divorce services.
When to Get Legal Help
Even if your divorce seems straightforward, there are times when professional advice can make the process smoother and prevent costly mistakes. You should consider legal help if:
- You’re unsure whether you qualify to avoid court.
- You and your spouse disagree about the divorce or related issues.
- You lived under one roof during the separation and need to provide extra evidence.
- You want certainty that your paperwork is correct and won’t cause delays.
- You also need to sort out property settlement or parenting arrangements, which require separate legal steps.
Getting advice early can save you time, reduce stress, and make sure your divorce is legally sound.
Getting Started With Family Law Resolutions
For many people, the answer to “Can I get a divorce without going to court?” is yes. If a court appearance is required in your case, one of our experienced family lawyers will attend on your behalf, as part of our fixed fee.
At Family Law Resolutions, we focus on keeping the divorce process simple, clear, and cost-effective. We have over 20 years of experience, and our team is committed to supporting you from the start.
If you’re considering divorce and want to know whether you can avoid court, schedule a free, no-obligation phone consultation today, and find out where you stand.
