Under section 48 of the Family Law Act 1975 (Cth), the Court may grant a divorce where the marriage has broken down irretrievably.
This is established by showing that the parties have lived separately and apart for a continuous period of at least 12 months and there is no reasonable likelihood of reconciliation.
The reason for the marriage breakdown—such as adultery, financial problems or family conflict—generally does not need to be proved.
Yes.
Section 49(2) of the Family Law Act 1975 expressly provides that spouses may be separated even though they continue living in the same residence. This is commonly known as “separation under one roof.”
The leading decision of In the Marriage of Pavey (1976) FLC 90-051 explains that the Court will usually look for evidence of a genuine change in the marital relationship, rather than simply accepting that the parties regarded themselves as separated. Relevant factors can include sleeping arrangements, finances, household duties and how the relationship was presented to family and friends. Federal Register of Legislation
Yes.
One spouse can make a sole divorce application. The other spouse does not have to consent.
The Court is principally concerned with whether the requirements under s 48 have been satisfied. A spouse cannot ordinarily prevent a divorce simply because they want the marriage to continue.
However, proper service of the divorce application is important in a sole application.
Having children does not prevent a divorce.
However, under s 55A of the Family Law Act 1975, the Court must be satisfied that proper arrangements have been made for the care, welfare and development of children of the marriage who are under 18, or that there are circumstances justifying the divorce taking effect despite the Court not being satisfied about those arrangements. Federal Register of Legislation
Importantly, obtaining a divorce does not itself determine parenting arrangements.
No.
Divorce and property settlement are legally separate processes.
A divorce ends the marriage. Issues concerning property, superannuation and spousal maintenance may need to be resolved separately by agreement, Consent Orders, a Financial Agreement or Court proceedings.
Under s 44(3) of the Family Law Act 1975, an application for property settlement or spousal maintenance generally needs to be commenced within 12 months after the divorce takes effect, unless leave of the Court is obtained. Federal Register of Legislation
Often, yes.
Under s 39(3) of the Family Law Act 1975, Australian divorce proceedings can generally be commenced if either spouse is an Australian citizen, is domiciled in Australia, or has been ordinarily resident in Australia for at least the 12 months immediately before filing the application. Federal Register of Legislation
An overseas marriage may therefore be dissolved by an Australian Court even though the marriage ceremony took place outside Australia.
Last updated: September 2026
Jurisdiction: Victoria, Australia
Disclaimer: This article provides general information only and does not constitute legal, financial or tax advice. The law may change and its application depends on individual circumstances. You should obtain professional advice before acting on the information contained in this article.