Divorce and maintenance

Divorce and what comes after it.

Divorce applications, spousal maintenance, and the financial arrangements that follow separation under the Family Law Act 1975 (Cth).

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Divorce in Australia is a civil procedure. It dissolves the legal status of a marriage. It does not resolve property, finances, children, or maintenance. Those are separate processes, each with their own rules and time limits.

That distinction matters practically. Many people apply for divorce and assume the paperwork is done. The financial settlement is not done unless it has been separately attended to. The property settlement time limit runs from when the divorce order takes effect, not from separation.

The emotional weight of a divorce is real. This page does not minimise that. But the legal process itself is one of the simpler parts of family law. There is one ground, no fault, and a straightforward application. The more consequential questions, money, maintenance, property, are dealt with elsewhere.

Fraser Lawyers handles divorce applications and advises on spousal maintenance, including applications for urgent maintenance. Related matters are covered separately: property settlement at /property-settlement/ and financial agreements at /binding-financial-agreements/.

Scope of work

What we help with

Fraser Lawyers assists with divorce and maintenance matters, including:

Matter: What it usually involves
Sole divorce applications: Where one party applies; service on the other party is required
Joint divorce applications: Where both parties apply together; no service requirement
Separation under one roof: Divorce applications where the parties lived separately but in the same home
Spousal maintenance (married): Applications under s 72 of the Family Law Act 1975 (Cth)
De facto maintenance: Applications under s 90SE of the Family Law Act 1975 (Cth)
Urgent maintenance: Interim applications under s 77 while the substantive matter is pending
Maintenance variation: Applications to vary or discharge existing maintenance orders
Short marriage financial advice: The intersection of divorce, maintenance, and property in shorter relationships

Maintenance and property settlement are related but distinct. Maintenance addresses ongoing support where one party cannot adequately support themselves. Property settlement deals with the division of assets accumulated during the relationship. They are assessed separately, under different legal tests, and are subject to different time limits.

Child support runs on a different track again, administered separately by Services Australia under the Child Support (Assessment) Act 1989 (Cth). It is not dealt with by the Court as part of a divorce application.

Process

What happens after you are charged.

The ground for divorce in Australia is simple: the marriage has broken down irretrievably. Section 48 of the Family Law Act 1975 (Cth) provides that the Court must grant a divorce if it is satisfied that the parties separated at least 12 months before the application and that there is no reasonable likelihood of cohabitation being resumed.

There is no fault requirement. Infidelity, financial misconduct, and the circumstances of the breakdown are not relevant to whether a divorce will be granted.

The 12-month period is counted from the date of separation. Separation does not require one party to leave the home. The parties may have been separated under one roof, provided that the separation was genuine and the change in the relationship was communicated or otherwise evident. Applications involving separation under one roof require supporting evidence, typically from both parties or from an independent witness.

Spousal maintenance threshold: Section 72 of the Family Law Act 1975 (Cth) sets out the test for maintenance between married parties. A party is entitled to maintenance from the other only if they are unable to support themselves adequately and the other party has capacity to pay. The question of adequate self-support is assessed against the standard of living that is reasonable in all the circumstances, not by reference to a bare minimum. Relevant factors include age, health, earning capacity, care of children under 18, and the effect of the relationship on the party’s ability to earn.

Section 90SE applies the same threshold to maintenance claims arising from de facto relationships.

Divorce procedure

How a divorce application works.

A divorce application is filed electronically through the Commonwealth Courts Portal with the Federal Circuit and Family Court of Australia. The filing fee applies unless an exemption is available.

Where the application is made by one party alone (a sole application), the other party must be served with the application. Service must comply with the rules: personal service is required in most circumstances, though substituted service is available where personal service is not practicable. The other party has an opportunity to respond, though most divorce applications are uncontested.

Where both parties apply jointly, no service is required. Either or both parties may attend the hearing; in most joint applications attended only by one party or decided on the papers, appearance is not required.

If there are children of the marriage under 18, the Court must be satisfied that proper arrangements exist for their care before a divorce is granted. The Court does not automatically require detailed evidence of those arrangements, but it is a step that must be addressed in the application.

A divorce order takes effect one month and one day after it is made, unless the Court orders otherwise. The property settlement time limit begins to run from the date the order takes effect: parties have 12 months from that date to apply for property settlement orders under s 44(3) of the Family Law Act 1975 (Cth).

Maintenance

Spousal maintenance in practice.

Maintenance applications are less common than they once were. Where both parties return to full-time work after separation, the threshold is often not met. But in relationships where one party stepped back from paid employment to care for children, or where age or health limits earning capacity, the question is worth examining.

The Court considers a range of factors: age and health of both parties, income and earning capacity, financial resources, care of children, commitments necessary to support themselves or others, an adequate standard of living, and the effect of the relationship on earning capacity. The weight given to each factor is discretionary.

Maintenance orders are not permanent by default. They can be time-limited to allow a party to retrain or re-enter the workforce. They can also be varied or discharged if circumstances change materially.

Urgent or interim maintenance under s 77 of the Family Law Act 1975 (Cth) is available where the substantive maintenance application has been made but not yet determined. It is designed to address immediate financial need while the matter is pending, not to pre-empt the final determination.

One practical consideration: the legal costs of contested maintenance proceedings frequently approach or exceed the amounts in dispute, particularly in lower-value claims. That is worth knowing before deciding whether to proceed. A candid assessment of likely quantum against likely cost is part of the initial advice.

Time limits

Deadlines and risks.

The property settlement time limit is one of the most important in family law. Once a divorce order takes effect, parties have 12 months to apply for property settlement orders under s 44(3) of the Family Law Act 1975 (Cth). After that, leave of the Court is required, and leave is not automatic.

Many people miss this deadline not because they are careless but because they assume settlement conversations that are still ongoing preserve their rights. They do not.

For de facto couples, the equivalent limit under s 44(6) is two years from the end of the de facto relationship. The relationship end date can itself become a disputed question.

Maintenance applications have their own timing implications. Once a divorce is granted and the 12-month period expires, a spouse’s entitlement to apply for maintenance is also extinguished by s 44(3). A maintenance application should be considered alongside property settlement, not treated as a separate question to be dealt with later.

Separation under one roof applications carry their own risk: if the Court is not satisfied that genuine separation occurred on the claimed date, the 12-month requirement is not met and the application will be refused.

What we do

How Fraser Lawyers acts in these matters.

Fraser Lawyers prepares and files divorce applications, advises on the grounds and procedure, and manages service where required. For joint applications, the firm can prepare the application for both parties where there is no conflict in doing so.

For maintenance matters, the starting point is an assessment of whether the threshold in s 72 or s 90SE is likely to be met, followed by an honest account of the likely range of any order and the cost of obtaining it. Where an application is warranted, the firm prepares the affidavit material, financial disclosure, and submissions.

Blake Fraser handles these matters personally. The property settlement and financial agreement aspects of separation are covered separately, but the advice at the initial stage takes the whole picture into account.

Practical

Documents to bring.

Marriage certificate Original or certified copy; FCFCOA requires it
Your identification Driver's licence or passport
Children's birth certificates If there are children of the marriage under 18
Evidence of separation date Correspondence, statutory declarations, any record of the change in arrangements
Separation under one roof evidence If applicable: independent witness details, correspondence, lease or mortgage showing shared address
Financial documents Pay slips, tax returns, Centrelink records, for maintenance assessment
Medical or health records Relevant where health affects earning capacity or maintenance need
Any existing financial orders or agreements Including property settlement consent orders or financial agreements
Child support assessment or agreement If already in place through Services Australia

Pathway

The likely path.

Step 1 — Initial advice and assessment.

The first meeting confirms whether the 12-month separation requirement is met, identifies whether the application should be sole or joint, and assesses whether any maintenance or property questions need to be addressed before or alongside the divorce application. The time limits are explained clearly at this stage.

Step 2 — Preparing the application.

The divorce application is prepared for filing through the Commonwealth Courts Portal. For sole applications, service arrangements are planned at this stage. Where the marriage certificate needs to be obtained from a registry, that step is also managed before filing.

Step 3 — Filing and service.

The application is filed electronically. For sole applications, the other party is served in accordance with the court rules. A copy of the sealed application must be served at least 28 days before the hearing date (42 days if the respondent is overseas).

Step 4 — Divorce hearing.

Most divorce applications are straightforward and are dealt with quickly. Where children under 18 are involved, the Court considers whether adequate arrangements are in place. If the application is uncontested (as most are), neither party needs to attend in most circumstances unless the Court directs otherwise.

Step 5 — Divorce order and the one-month period.

A divorce order is pronounced at the hearing. It takes effect one month and one day later. The 12-month property settlement limitation period begins to run from the date the order takes effect. Any maintenance application or property proceedings should already be in progress or planned before this date is reached.

Frequently asked

Questions we hear often.

Plain-English answers to the questions clients tend to ask. If your question is not here, call us.

Get in touch

Do I need a lawyer to apply for a divorce?

No. A divorce application can be made without a lawyer. Many people file their own application, particularly for joint applications where the procedure is straightforward. Legal advice is still worth considering where the separation date is in dispute, where there are children under 18, where service may be complicated, or where the maintenance and property questions have not been resolved. The divorce application itself is the simpler part; the financial and parenting arrangements often require more care.

My spouse and I have been separated for two years but are still living in the same house. Can we apply for divorce?

Yes, provided the separation was genuine. Section 48 of the Family Law Act 1975 (Cth) does not require the parties to live apart. It requires that the marriage has broken down irretrievably. A separation under one roof can satisfy that requirement, but the application must be supported by evidence that the relationship changed in a real and communicated way on the claimed separation date. The Court typically requires affidavit evidence from both parties or an independent witness.

Is there any way to speed up the 12-month separation requirement?

No. The 12-month period is a statutory requirement under s 48 of the Family Law Act 1975 (Cth). There is no discretion to waive it. The Court must be satisfied the requirement is met before granting a divorce. In exceptional circumstances the Court may grant a divorce despite a period of resuming cohabitation during the 12 months, but only where that period did not exceed three months and was a genuine attempt at reconciliation that did not succeed.

I was not working during our marriage because I was caring for children. Am I entitled to maintenance?

Possibly. The question is whether you are unable to support yourself adequately and whether your spouse has capacity to pay. Under s 72 of the Family Law Act 1975 (Cth), the Court considers the effect of the relationship on your earning capacity, the care of children, your age and health, and your financial resources. The fact that you were a primary carer is one relevant factor. Whether a maintenance order would be made, and in what amount, depends on a full assessment of both parties’ financial positions and circumstances.

Does divorce affect child support?

No. Child support is administered separately by Services Australia under the Child Support (Assessment) Act 1989 (Cth). It is assessed by formula based on both parents’ incomes and the care arrangements. The FCFCOA can also make child maintenance orders in limited circumstances, but the Services Australia administrative assessment is the standard pathway. Divorce does not trigger, discharge, or alter a child support assessment.

What is the deadline for property settlement after divorce?

Twelve months from the date the divorce order takes effect (not from the hearing date, and not from separation). Section 44(3) of the Family Law Act 1975 (Cth) bars an application for property settlement made outside that period without leave of the Court. Leave is available but is not granted automatically. If you are separated and a divorce application is underway, it is important to address the property settlement question before the limitation period begins to run.

Talk to Fraser Lawyers about your divorce or maintenance matter.

A brief conversation is usually enough to confirm whether the requirements are met, what the procedure involves, and whether there are related financial questions that need attention at the same time. Fraser Lawyers is based at 86 Bundall Road, Bundall.

Call (07) 5554 6116 Send a short enquiry