Divorce Proceedings Where you and your Spouse Agree

You’ve told us that you and your spouse agree to applying for divorce and to how property will be split between you post-separation.  In general, this makes the process more straightforward, cheaper and quicker so working towards a consensual divorce that is fair for both parties, where circumstances permit, can be a good approach.

For context, if spouses don’t file a joint divorce application or don’t agree on the division of property, a long, expensive, and drawn-out court process can follow — in some cases costing tens of thousands of dollars or more. It can also lead to uncertainty, emotional stress, and delays. 

The emotional toll and stress that can be caused by contested proceedings is also something that may be minimised when the divorce application and financial arrangements are agreed. That said, there may be individual circumstances where consent proceedings are not possible or appropriate, for example where there is violence or you can’t locate your spouse.  Always seek individual legal advice if you are in a dangerous, risky or otherwise worrisome situtation. 

Getting the right information early helps you make decisions that protect your interests, reduce legal costs and stress, and work towards a just and equitable outcome.

Filing your Divorce Application

The divorce process is usually straightforward if you and your spouse are and remain in agreement. You will file a joint application (sometimes informally called a ‘consent application’) signed by you both, which simply means you both agree to apply for divorce together. This can be done online via the Commonwealth Courts Portal.

Cost: It typically costs around $1,125 to file the application (this excludes any legal fees if you engage a lawyer), although in some cases this may be decreased due to financial hardship.

What happens after filing?

It goes in the court system. If your spouse continues to consent to the application (remember, sometimes people do change their minds), then often the application will be dealt with ‘on the papers’; this means the court approves your application without a hearing, although sometimes a hearing may be needed.

The divorce is finalised one month and one day after the court approves the application. It’s important to know that it’s illegal to remarry before your divorce is finalised.

Other Requirements

There are a number of other requirements that apply to divorce applications, such as making sure at least one party is either an Australian citizen, ordinarily resident in Australia, or a permanent resident, and that you have been separated for at least 12 months.

If you have been married for less than 2 years, you will need to attend counselling together and provide a counselling certificate as part of your divorce application.  If counselling is not possible (for example, because your spouse refuses or you cannot locate them), you may apply to the court for an exemption by filing an affidavit explaining why you can’t go to counselling. An affidavit is a statement where you sign a version of events and swear they are true.

If you have been separated but continued living together during the separation period, you will need to provide affidavits explaining how you were meaningfully separated despite sharing a home (for example, separate bedrooms, no shared meals or finances, changed social arrangements).

The court will not finalise your divorce until it is satisfied that proper arrangements have been made for any children under 18.  See below for more information about the form that these arrangements might take.

The divorce application itself doesn’t deal with property matters, which should be handled in a separate agreement.  This is something that might seem counterintuitive and so might catch people offguard.

Property arrangements (with consent) 

Settling property arrangements with consent, where appropriate and possible to do so, can help make the process more straightforward and less costly. It is important to get informed about your rights and options so that you make sure any settlement reached is a fair outcome for both parties. 

Types of Property Arrangements

Property arrangements can be informal (not legally binding) or formal (legally binding). Having no formal agreement can create uncertainty and instability around your financial arrangements, so caution is advised.  Understanding the risks that come with this is important so you can consider the value of entering into a formal arrangement. While formal arrangements do take more time and can be more costly in the short term, they can also give you certainty and help ensure you make decisions in your best interest. They can also help protect your financial interests in the longer term, so it’s worth exploring your options.

Binding Property & Spousal Support Arrangements

A formal arrangement can cover property, financial resources, and spousal maintenance, and can take either of the following forms:

• A binding financial agreement (BFA) — a private, legally enforceable contract that is not filed with the court.

• An application for consent orders — a formal court order, legally binding and enforceable, which gives the most certainty and security.

Having a formal, legally binding agreement about property arrangements can give you the certainty you need while saving you a lot of money and time in contested court hearings. However, you should make sure you are comfortable with the financial agreement that is reached. This starts with getting the right information to help you make an empowered decision.

There are some common myths about how property is divided after separation.  Some people believe that assets are always split 50/50.  This isn’t necessarily the case - the law doesn’t offer hard and fast rules about what assets each person gets.  At a high level, the division of property must be just and equitable, and the law uses a process that involves identifying all assets, assessing the contributions of each party (at the start, during, and after separation), and making adjustments for future needs.  It is good to understand this process so you can consider the best path forward for you. 

Full & Frank Disclosure

Each person must provide full and frank disclosure of their assets (that’s a legal way of saying they have to show all the assets they hold, even if their spouse isn’t aware of them). This includes all liabilities and assets such as property, cash, superannuation, vehicles, shares, businesses, trusts, significant personal property (like jewellery, art, etc.), and other financial resources. Failure to disclose can lead to a BFA or court order being set aside later. Spousal maintenance is considered separately from the property division and is based on one person’s need and the other’s ability to pay.

Important Timelines: if you want to apply for court orders for property arrangements, you need to file these within 12 months from the date of divorce.

Filing a divorce application without closing out property arrangements can carry risk.  There are compelling reasons for finalising property arrangements before your divorce application. These might include:

• Better negotiating leverage while all matters are still on the table

• Avoiding the risk of your spouse hiding or selling assets after the divorce (which may be harder to recover later)

Parenting Arrangements (No Consent)

You’ve indicated that you and your former spouse do not agree on parenting arrangements. This can make the process significantly more complex and expensive than where you reach agreement on these arrangements. By drawing out the process it could also contribute to the emotional distress of the situation.  Without agreement, you may need to apply to the court and ask a judge to decide the arrangements for your children.

This path often involves higher legal fees, potential delays, and the added stress of being involved in formal proceedings. In some cases, the cost of a parenting dispute can reach tens of thousands of dollars or more. There may also be long-term impacts on communication, co-parenting dynamics, and the wellbeing of the children if the dispute becomes protracted or hostile.

In many situations there can be benefits for all people involved to try to resolve parenting issues outside of court.  However there will be situations where this won’t be appropriate or possible (for example in cases of violence or a spouse who can’t be located). In these situations it is especially important to seek legal advice particular to your unique circumstances.  

In all situations it is important to get good quality information and be informed of your options so you can make a good decision. 

Family Dispute Resolution

If no agreement can be reached, and you're considering applying to the court, you will usually need to attend Family Dispute Resolution (FDR) first. This is a form of mediation where both parents are supported in trying to resolve their parenting dispute.

Unless there is a valid exemption (such as urgency, family violence, or serious risk), you will need to obtain a section 60I certificate from an accredited FDR practitioner before filing your court application. This certificate shows that you made a genuine attempt to resolve the dispute before asking the court to make parenting orders.

Applying to Court for Parenting Orders

If agreement still can’t be reached, one person may apply to the Federal Circuit and Family Court of Australia for parenting orders. These are legally binding orders that will determine things like; who the child lives with, the time the child spends with each parent, how parental responsibility is shared and other special arrangements (e.g. communication, holidays, or relocation). 

The court will make these decisions based on what is in the best interests of the child, taking into account the information provided by the parents or other people. Having reputable legal advice is recommended to help guide you through this process.

Each ex-spouse will be required to provide information relevant to parenting orders, and the process may involve multiple court events, evidence from both parties, and possibly input from professionals such as a family consultant or Independent Children’s Lawyer. You may need to attend court, either yourself or via a representative. When the court makes the order about parenting arrangements, it’s then binding on you and your ex-spouse and can be enforced by the Court. Breaching a parenting order is a very serious matter and can result in fines, community service orders or in severe cases even imprisonment.

Divorce has lots of flow-on effects that people often overlook. These can include:

• Wills: Divorce cancels any part of your will that appoints your ex-spouse as executor or trustee, or leaves gifts to your spouse. Make sure you update your will to take this into account.

• Powers of Attorney & Guardianship: If you have an enduring power of attorney or guardianship appointing your ex-spouse, that will generally stay in place unless you revoke it. This means your ex could still make legal or medical decisions on your behalf. You should formally update these documents.

• Life Insurance & Death Benefits: Life insurance or superannuation death benefits may still go to your ex after divorce if you don’t update your beneficiary nominations. You need to contact your insurers and super fund to update these details as appropriate.

• Joint Debts: Divorce doesn’t release you from joint liabilities. You need to think about what debt you hold in both names and formally transfer or refinance liability as needed.

• Name Change: If you changed your name during the marriage, consider whether you want to change it back to your prior name. This involves paperwork, including updating your passport, driver’s licence, bank accounts, and other records