You’ve told us you and your spouse don’t agree on the divorce application or financial arrangements. If spouses don’t file a joint divorce application or don’t agree on the division of property, it is important to know that 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. Each spouse plays a part in working towards a fair and amicable resolution of post-separation arrangements. 

The emotional toll and stress that can be caused by contested proceedings is also something to consider.  As a general rule of thumb, the cost, time and potential stress of court proceedings can be minimised where spouses consent to divorce applications and agree between themselves financial arrangements - further information on a divorce application by consent can be found here.  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.  

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.

Divorce Process (When you are applying without your spouse’s consent)

If you are filing for divorce without your spouse’s consent you file what’s known as a sole application with the Commonwealth Law Portal.  You will receive back a sealed application — that’s the application stamped by the court.  

Service

The sealed application needs to be ‘served’ on your spouse, meaning you need to make sure they are properly notified. There are strict legal rules on how to serve it that you’ll need to consider in more detail.  For instance, you can’t serve it yourself but rather someone over 18 must serve it like a friend, family member, or a professional process server.

Timing: If your spouse is in Australia: you must serve them at least 28 days before the court hearing.  If they are overseas: you must serve them at least 42 days before the court hearing.

Cost: Filing a sole application currently costs around $1,060 (check for updates; reduced fees may apply in hardship cases).  However, if your spouse is uncooperative or difficult to locate, costs can increase because you might need legal help or a process server.

What if You Can’t Serve Them?
If you have made genuine efforts but cannot serve your spouse, you can apply to the court for:

• Substituted service — permission to serve by another method (such as email, social media, or through a family member).

• Dispensation of service — permission to skip service altogether.

The court will hold a hearing (which you may need to attend) to decide whether to allow this. If the court agrees that you don’t need to serve your spouse, they may even move ahead and decide your application at the same time. If the court orders you to try another method of service, you must comply before they will hear the case.

Spouse’s Opportunity to Respond
Once served, your spouse can file a Response to Divorce if they disagree with any facts in your application (for example, the separation date).  This does not necessarily stop the divorce but may lead to a court hearing where both sides explain their positions.

Court Decision
The court will schedule a hearing (you may or may not need to attend) to decide whether the legal requirements for divorce are met. These include:

• That there has been an irretrievable breakdown of the marriage.

• That there is no reasonable chance of reconciliation.

Remember you do not need to prove fault - you simply need to meet the legal and administrative conditions. If approved, the divorce becomes final one month and one day after the court order.  It is important to know that it is illegal to remarry before the 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 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 it’s good to know and plan for upfront.

Property arrangements (without consent) 

As set out above, settling property arrangements without consent can involve a long, expensive, and drawn-out court process — in some cases costing tens of thousands of dollars or more. It can also lead to significant uncertainty, emotional stress, and delays. Each party plays a part in working towards a fair and amicable resolution of post-separation arrangements. 

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

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 (ongoing payments made by one spouse to another).  In circumstances where you don’t have your spouse’s consent, you’ll need to make an application to the court for property settlement orders — this involves a formal court order, which is legally binding and enforceable.  This requires following formalities associated with preparing court documentation, serving it on your spouse in line with standard rules of service and potentially attending a court hearing (or having someone attend on your behalf).  

Before you file an application to the court, you’ll need to show that you have taken genuine efforts to resolve the matter between yourselves. This usually includes providing full and frank disclosure of your financial position to the other party. Disclosure is required even if the matter proceeds to court. It’s important to know that there are special circumstances where this is not possible or appropriate, such as urgency, family violence, risk of non-compliance (such as hiding assets) and other reasons. 

Full & Frank Disclosure

This involves showing all the assets you hold to your spouse, even those your spouse isn’t aware of.  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 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.

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. 

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. If you were in a de facto relationship, you must apply for court property orders within 2 years of the date of separation. 

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