- To apply for divorce, you must first be separated from your ex-spouse for at least 12 months and one day
- To apply for property settlement, different time limits apply for married and de facto relationships
- Separated de facto couples must apply for property settlement orders within two years from the date of separation.
- Separated married couples must apply for property settlement orders within 12 months from the date of divorce.
- There is no minimum waiting period to apply for property settlement orders and generally speaking, the sooner the better.
The Family Law Courts
In Australia, divorces and property settlement orders are granted under the Family Law Act 1975 which provides the Courts with the power to make Orders across all States and Territories, except Western Australia who have their own family court system. Even so, the Western Australian Family Law system mirrors the Federal system in most respects.
As such, there are two main Family Law Courts:
- The Family Court of Australia
- The Federal Circuit Court of Australia
While both courts have jurisdiction to hear property settlement and divorce cases, typically all divorce applications are lodged with the Federal Circuit Court of Australia. On the other hand, Application for Consent Orders (agreed property settlement cases) are lodged with the Family Court of Australia.
Eligibility and Time Limits
To make a successful application for divorce or property settlement you must first be eligible to apply. The basic eligibility criteria for each type of application includes time limits.
To apply for a divorce in Australia, the court must be satisfied that the marriage has broken down irretrievably and that the parties have separated and lived separately and apart for 12 months prior to the date of filing your application. In other words, you must be separated for at least, 1 year and 1 day, which is typically evidenced by the parties living separately during that period.
Anna and Ben were married on the 8th of April 2011. After 10 years of marriage, they separated on 8th August 2021. Ben moved out of the family home the same day. In this scenario, the earliest that Anna and/or Ben would be able to apply for divorce is 9th August 2022.
If the parties have continued living under the same roof together after separation, they will still be able to apply for divorce 1 year and 1 day after the date of separation. However, in this case additional evidence of the separation will need to be provided to the court in the form of affidavit statements.
Aside from the time limit, to be eligible you must be able to answer ‘Yes’ to at least one of the following conditions:
- You regard Australia as your home and intend to live indefinitely in Australia; or
- You are an Australian Citizen by birth or descent; or
- You are an Australian Citizen by grant of citizenship.
After separation, there is no minimum waiting period to apply for property settlement, and generally sooner is better than later.
However, it is important to be aware there are time limits within which married and de facto couples must apply for property settlement:
- For married couples, there is a 1-year time limit from the date of divorce.
- For de facto couples there is a 2-year time limit from the date of separation.
Failing to commence proceedings within the time limit could mean losing your right to make a claim for property division. If you are already outside the time limit and want to apply for property settlement, you still have options. Married couples who have reached a settlement agreement can still apply together outside the time limit by making an Application for Consent Orders.
De facto couples who have reached an agreement can also still seek to apply together for Consent Orders outside the time limit but must ‘seek leave’ (request special permission) from the Court when making their application. Depending on a range of factors, this may or may not be granted.
As noted above, for practical reasons it’s generally not a good idea to wait too long after separation to attend to your property settlement. The longer you wait, the more complicated the process may become when you do get around to it.