How to Get Divorced in South Australia: A Step-by-Step Guide
Deciding to end a marriage can feel overwhelming. Alongside the emotional impact of separation, you may be unsure about the legal process, the documents you need or when you can apply for a divorce.
Although you may live in South Australia, divorce is governed by Australian federal family law and applications are dealt with through the Federal Circuit and Family Court of Australia.
Importantly, getting divorced is not the same as finalising your property settlement or parenting arrangements. Divorce legally ends your marriage, but there may be other matters that need to be addressed separately.
For guidance about separation, divorce and related family law matters, explore Brite Legal’s Family Law services.
This step-by-step guide explains how to get divorced in South Australia and what you may need to consider before beginning your application.
What Does a Divorce Actually Do?
A divorce is the legal ending of a marriage.
Australia has a “no-fault” divorce system. This means the Court does not need to decide who was responsible for the relationship ending. The Court generally does not consider matters such as infidelity or the reasons one person decided to leave.
The legal ground for divorce is that the marriage has broken down irretrievably. This is demonstrated by showing that you and your former spouse have been separated for at least 12 months and one day and there is no reasonable likelihood that you will reconcile.
A divorce only ends the marriage itself. It does not automatically resolve:
how your property, savings or debts will be divided;
what will happen to the family home;
how superannuation will be dealt with;
parenting arrangements for your children;
child support; or
spousal maintenance.
These issues may need to be considered separately.
Step 1: Be Separated for at Least 12 Months and one day
Before applying for divorce, you and your former spouse must have been separated for at least 12 months and one day.
Separation generally begins when one or both people decide that the marriage has ended and communicate that decision to the other person. In some circumstances, a person’s actions may also help demonstrate that separation has occurred.
It is helpful to make a record of your separation date, as you will need to include it in your divorce application.
What if You Reconcile for a Short Time?
Some couples briefly reconcile after separating and then separate again.
If you resume your relationship for less than three months and later separate again, it may be possible to add the periods of separation together. However, the period during which you resumed the relationship is generally not counted as part of the required 12 months.
If you reconcile for three months or longer, the original separation period will usually no longer count and the 12-month period may need to begin again.
Can You Be Separated While Living Together?
Yes. You can be separated even if you continue living in the same home.
This is commonly known as separation under one roof. It may happen because of financial pressure, housing availability, children or other practical considerations.
When applying for divorce, you may need to provide additional evidence showing that the relationship had ended even though you continued sharing an address. Evidence may cover changes to your sleeping arrangements, finances, household responsibilities and social life.
For a more detailed explanation, read Navigating Separation While Living Under the Same Roof.
Step 2: Check That You Can Apply for Divorce in Australia
To apply for divorce in Australia, either you or your former spouse must have a sufficient connection to Australia.
Generally, this means that at least one of you:
is an Australian citizen by birth, descent or grant of citizenship;
regards Australia as home and intends to live here indefinitely; or
ordinarily lives in Australia and has lived here for at least the 12 months immediately before filing the application.
You may also need to provide evidence of citizenship or residency as part of the application.
What if You Were Married Overseas?
You can usually apply for divorce in Australia even if your marriage took place overseas, provided the marriage is legally recognised and you or your spouse meet the Australian citizenship or residency requirements.
You will need to provide a copy of your marriage certificate. If the certificate is not in English, an English translation and supporting documentation from the translator will generally be required.
Step 3: Decide Between a Joint or Sole Divorce Application
A divorce application can be made jointly or by one spouse alone.
Joint Application
A joint application is completed by both spouses.
Because both people are applying together, the application does not need to be formally served on either party. A joint application does not mean that you must agree about property settlement, parenting arrangements or every other issue arising from your separation. It only means that you are both participating in the divorce application.
Sole Application
A sole application is made by one spouse, who is known as the applicant.
The other spouse is known as the respondent. The respondent does not need to agree to the divorce, but they must generally be given formal notice of the application through a process called service.
Your former spouse cannot prevent a divorce simply because they do not want the marriage to end. However, they may dispute information in the application, including the separation date or whether the legal requirements for an Australian divorce have been met.
Step 4: Gather the Information and Documents You Need
Before starting your application, it can help to gather the relevant information and documents.
These may include:
your marriage certificate;
evidence of Australian citizenship or residency, if required;
the date you and your former spouse separated;
information about any periods of reconciliation;
details about children of the marriage who are under 18;
your former spouse’s current address; and
evidence supporting separation under one roof, where relevant.
The divorce application will ask for information about the marriage, separation and any children under 18.
If you were married less than two years ago, additional requirements may apply. Generally, you may need to attend counselling to discuss the possibility of reconciliation and obtain a counselling certificate before filing, unless an exemption applies.
Step 5: Complete and File the Divorce Application
Divorce applications are generally completed and filed online through the Commonwealth Courts Portal.
You will need to complete the application carefully, upload the required documents and pay the Court filing fee. Some people may qualify for a reduced filing fee depending on their circumstances.
Once the application has been filed, the Court will allocate a hearing date.
While some people complete their own divorce application, complications can arise where:
you cannot locate your former spouse;
your former spouse lives overseas;
you disagree about the separation date;
you have been separated under one roof;
you do not have your marriage certificate;
the marriage certificate is not in English; or
you were married for less than two years.
Legal advice can help you understand what evidence or additional documents may be required.
Step 6: Serve the Application if You Applied Alone
If you make a sole application, the divorce documents must generally be formally served on your former spouse.
You cannot personally serve the documents yourself. They may instead be served by another adult or a professional process server.
If your former spouse is in Australia, the documents generally need to be served at least 28 days before the hearing. If they are overseas, they generally need to be served at least 42 days before the hearing.
Evidence of service must then be filed with the Court.
What if You Cannot Find Your Former Spouse?
Not knowing where your former spouse lives does not necessarily prevent you from getting divorced.
However, you may need to ask the Court for an order allowing:
substituted service, where the documents are given to another person or sent through another method likely to bring them to your former spouse’s attention; or
dispensation of service, where the requirement to serve the documents is removed.
You will generally need to show the Court what reasonable steps you have taken to locate your former spouse.
Step 7: Attend the Divorce Hearing if Required
Whether you need to attend the hearing will depend on the type of application and your circumstances.
You will generally not need to attend if you made a joint application.
If you made a sole application and there is a child of the marriage under 18, you will generally be required to attend. The Court must be satisfied that appropriate arrangements have been made for the care and welfare of any children under 18 before granting the divorce.
The information considered may include:
where the children live;
how much time they spend with each parent;
their schooling;
their health;
their financial support; and
any other relevant care arrangements.
The divorce hearing does not determine parenting arrangements or make parenting orders unless a separate parenting case is before the Court. The Court is simply checking whether appropriate arrangements are in place for the children.
Step 8: Wait for the Divorce to Become Final
If the Court is satisfied that the legal requirements have been met, it may make a Divorce Order.
The divorce does not usually become final on the hearing date. It generally becomes final one month and one day after the Divorce Order is made.
Once the divorce is final, the Divorce Order can usually be downloaded from the Commonwealth Courts Portal.
You should not make firm plans to remarry until the divorce has become final. Delays can occur if the Court requires more information or if there are problems with the application or service documents.
Does Divorce Automatically Finalise Your Property Settlement?
No. A divorce and a property settlement are separate legal processes.
A Divorce Order legally ends your marriage, but it does not automatically divide your assets, liabilities or superannuation. It also does not prevent either party from making a future property claim.
A property settlement may deal with matters including:
the family home and other real estate;
bank accounts and savings;
vehicles;
businesses;
investments;
personal debts;
mortgages and loans; and
superannuation.
Formalising your financial arrangements can provide greater certainty and help protect both parties from future claims.
Read Does Divorce Deal With Property Settlement? What You Need to Know for a more detailed explanation of the difference between divorce and property settlement.
How Long Do You Have to Apply for Property Settlement?
Once a divorce becomes final, married couples generally have 12 months to start Court proceedings for property settlement or spousal maintenance.
This does not necessarily mean you should wait until after your divorce to deal with financial matters. Property settlement can often be negotiated and formalised before a divorce application is made.
If the 12-month period has passed, you may need the Court’s permission to begin proceedings. Permission is not automatic, which is why it is important to obtain advice about your financial position and relevant time limits as early as possible.
For guidance about formally dividing assets and liabilities, book a free call with our Solicitors HERE
What Happens to Parenting Arrangements After Divorce?
A divorce does not decide where children will live or how much time they will spend with each parent.
Parenting arrangements are a separate issue and may be addressed through:
an informal parenting arrangement;
a parenting plan;
consent orders; or
Court proceedings, where an agreement cannot be reached.
The most appropriate option will depend on your family’s circumstances.
It is also possible to be divorced without having formal parenting orders, provided appropriate arrangements are in place for the children. However, legal advice may help you understand whether an informal agreement provides enough certainty and protection for your family.
Do You Need a Lawyer to Get Divorced?
You are not legally required to have a lawyer to apply for divorce.
Some divorce applications are relatively straightforward. However, legal advice may be valuable if your circumstances involve:
separation under one roof;
uncertainty about the separation date;
difficulty locating or serving your former spouse;
a marriage that took place overseas;
children and disputed parenting arrangements;
family violence or safety concerns;
property settlement or spousal maintenance;
a disagreement about whether the legal requirements have been met; or
a marriage of less than two years.
A family lawyer can also help you understand the broader consequences of separation, rather than looking at the Divorce Order in isolation.
Frequently Asked Questions About Divorce in South Australia
How long does it take to get divorced?
You must first be separated for at least 12 months. Once you are eligible to apply, the overall timeframe will depend on the Court’s available hearing dates, whether service is required and whether the application is complete.
If the divorce is granted, it will generally become final one month and one day later.
Can I apply for divorce online?
Yes. Divorce applications are generally completed and filed online through the Commonwealth Courts Portal.
Does my former spouse have to agree to the divorce?
No. You can make a sole application even if your former spouse does not agree.
However, you must establish that the legal requirements have been met, including at least 12 months of separation, and you must generally serve the application on your former spouse.
Can I get divorced while living in the same house?
Yes. Australian family law recognises separation under one roof.
You may need to provide additional evidence demonstrating that your relationship had ended even though you continued living at the same address.
Can I get divorced before finalising property settlement?
Yes. Divorce and property settlement are separate processes.
However, once the divorce becomes final, a 12-month time limit generally applies to commencing property settlement or spousal maintenance proceedings.
Can I remarry immediately after the hearing?
No. A divorce generally becomes final one month and one day after the Divorce Order is made.
You should wait until the final Divorce Order is available before making firm plans to remarry.
Understanding the Next Step
Getting divorced in South Australia involves more than completing a form. Before applying, you need to confirm that you meet the eligibility requirements, have been separated for at least 12 months and understand whether service or additional evidence will be required.
It is equally important to remember that divorce only legally ends the marriage. Property settlement, parenting arrangements, child support and spousal maintenance are separate matters that may still need to be addressed.
If you are considering divorce or have already separated, Brite Legal’s experienced Family Law team can help you understand the process and identify the next steps relevant to your circumstances.
Contact Brite Legal to book an appointment and discuss your situation.
This article provides general information only and is not legal advice. Family law outcomes and procedural requirements depend on individual circumstances. You should obtain legal advice tailored to your situation.
Written by Brite Legal
Reviewed by Jess Feast, Solicitor
Jess is a solicitor at Brite Legal, assisting clients with family law, property settlement and mediation matters across South Australia.
This article has been legally reviewed to help ensure the information is accurate and up to date at the time of publication.