When there is a question about the legal validity of the marriage (Marriage Act 1961), a marriage may be declared invalid (declaration of nullity) by a court.

Under the Family Law Act 1975, the Federal Circuit and Family Court of Australia and the Family Court of Western Australia have the power to declare a marriage invalid.

What is a declaration of nullity?

Also known as an annulment, a declaration of nullity is a finding that there was no legal marriage between the parties, even though a marriage ceremony may have taken place. The Court may declare a marriage invalid on the following grounds:

• one or both of the parties were already married at the time
• one or both of the parties were under-age and did not have the necessary approvals, or
• one or both of the parties were forced into the marriage under duress.

The Court will NOT declare a marriage invalid on the following grounds:

• non-consummation of the marriage
• never having lived together
• family violence, or
• other incompatibility situations.

See Marriage Act 1961 or the Family Law Rules 2021 for more information about applying for a decree of nullity.

How do I apply for nullity?

To apply for nullity, you must file (and serve) an Initiating application. You will also need to prepare an Affidavit – Family law and child support stating the facts relied on to have the marriage annulled, and details of the type of marriage ceremony performed. 

For more information, see the fact sheet Applying for a decree of nullity. 

I’ve been served with an application for nullity, what should I do?

If you have been served with an Initiating application seeking a declaration of nullity, you can file (and serve) a Response to initiating application (Family law). You must also file an Affidavit – Family law and child support setting out any facts you (the respondent) rely upon in opposing the application for nullity. 

For more information about filing a response, see the Response to initiating application kit (Family law).

More information

The Family Law Practice Direction – Nullity and validity of marriage (FAM-NULLITY) sets out the procedure the Court will follow to determine your nullity application. 

Legal advice

If you need help to complete the application or are unsure about whether you are eligible to apply for nullity, you should obtain legal advice. For more information see Legal help.

Divorce hearings normally occur before a registrar. If your application is properly prepared and all procedural rules have been complied with, including serving your application, the Registrar will usually be able to determine your application at the first hearing.

If the Registrar considers that something more needs to be done before your application is granted, including allowing the Respondent time to file material, or requiring you to put more evidence before the Court, then the application may be adjourned and instructions will be given about what you need to do next.

Do I have to attend the divorce hearing?

Attending the divorce hearing is only required if:

• the Applicant indicated they wish to attend in the application
• the Respondent has requested to attend the hearing where there are children under 18
• the Respondent files a Response to divorce opposing the application, or
• you are applying for an order for substituted service or a dispensation of service because you cannot find your spouse to serve the court documents.

It is advisable to attend your hearing if you are required to provide additional affidavit material to explain particular circumstances of your relationship which may impact the outcome of your application, such as if there has been a: 

• period of separation under the same roof, or
• change in circumstances since you filed your application. 

If you filed a sole application and your spouse (the respondent) has completed and filed a Response to divorce, but does not oppose the application, they do not need to attend the hearing and you may also choose not to attend. But if they have opposed the application in the Response to divorce, they must attend the divorce hearing to explain why they wish to oppose the divorce order being made. You should also attend as if you do not, and they oppose the divorce being granted the Court may treat their Response as undefended and dismiss your divorce application. 

What if I want to attend the hearing?

Divorce hearings are conducted electronically. If you wish to attend the hearing, even when you are not required to, you can indicate this in your application.

Divorce hearings are conducted by phone. See Attending the Court for more information.

What if I can't attend the hearing?

If you are required to attend the hearing and you or your legal representative is unable to attend, you will need to write to the Registrar by email to nationaldivorce@fcfcoa.gov.au seeking an adjournment of the hearing, and explaining the reasons why you are unable to attend. The Court processes many divorce applications daily so it may not be possible to reschedule your hearing date, unless in exceptional circumstances. 

The Court may decline to adjourn your hearing if your spouse was served and has not consented to the date being adjourned. If you have served your spouse, you should not ask for an adjournment without discussing it with them first. You must copy your spouse or their legal representative into any request made for an adjournment.

Attending the Court

Divorce hearings are conducted by phone (unless you are advised otherwise) before a registrar of the Court. This means you will not need to attend the Court registry in person, or have a lawyer appear in person on your behalf. You will need access to a telephone to attend the hearing but you do not need to download any special applications.

Once you file your Application for divorce with the Court, the hearing details will be available on: 

• Commonwealth Courts Portal (see ‘Court Events and Orders’ section), and
• the court list from 4pm (AEST/AEDT) the day prior to the hearing (please note: this will only be listed if you have requested to attend).

The details will include the date and time of your divorce hearing, the name of the Registrar who will hear and determine your application, and the phone dial in details.

Even though you do not need to physically attend the Court, all the usual courtroom procedures apply. See Attending court for more information about attending your court hearing, including etiquette and tips, and information about electronic hearings. 

You should address the Registrar as ‘Registrar’ when you speak to them.

Have your documents available

You should keep a copy of all the divorce documents, including your application and service documents, and have them with you during your hearing so that you can answer any questions the Registrar may have when considering your application. 

You should check carefully that all the documents you filed were accepted by the Court. If any document was refused or not accepted by the Court this will be advised by email. 

The Court may decline to consider any documents that were not accepted for filing prior to the day of hearing. 

If I don’t attend the hearing how will I know if I'm divorced?

Even if you are not required to attend the hearing, your divorce will only be granted if all the requirements for a divorce are met. For a sole application, one of the key requirements is proof that the divorce application has been properly served on the respondent, in accordance with the Rules of Court. 

If your divorce is not granted, you will be sent email correspondence explaining the reason/s why, and what further steps are required by you to ensure the divorce will be granted by the Registrar on the next hearing date. 

If your divorce is granted, it will be finalised one month and one day later (unless this is shortened or lengthened by a special order of the Court). You will only be able to access and download your divorce order (proof of your divorce) from the Commonwealth Courts Portal, the day after it is finalised. You will not otherwise be advised that the application has been successful. 

If you do not comply with the requirements for a Divorce, including filing any documents that the Court directs, the Court may dismiss or strike-out your application. This may mean you need to re-file your application and pay another filing fee if you still wish to be divorced. If this occurs, the Court will publish orders that finalise your divorce application. You will be able to obtain the orders from the Commonwealth Court’s Portal. 

If you have received a copy of an Application for divorce, bearing the seal of the Court, this means your spouse has applied for a divorce and you have been served. In a sole application, your spouse (who filed the application with the Court) is known as the applicant and you (as the other party) are known as the respondent.

You should read the application as soon as possible and acknowledge you have been served.

What documents should I receive?

To be properly served, you should receive the following documents from your spouse:

• a copy of the Application for Divorce
• a copy of the Marriage, Families and Separation brochure
• a blank Acknowledgment of service form (to be signed by you)
• a copy of the Affidavit for eFiling signed by your spouse, and
• any other documents filed by your spouse at the time of the Application for divorce including the Marriage Certificate, any Affidavit – Family law and child support in support. These additional documents will vary.

How do I acknowledge I have been served?

When you were served with the Application for Divorce, you should have also been provided with a form called an Acknowledgment of service (Divorce). You should sign the Acknowledgment of service (Divorce). If you were served:

• by hand (in person, by someone other than your spouse, handing you the documents), you should have already signed the Acknowledgment of service (Divorce) and returned it to the person who served you.
• by post, you should have been provided with a pre-paid envelope. Place the signed Acknowledgment of service (Divorce) into that envelope and post it like any other letter. You should do this as soon as possible. If you do not receive a pre-paid envelope when you are served, you are still required to sign the Acknowledgment of service and post it to your spouse.
• via your lawyer, your lawyer should sign the Acknowledgment of service (Divorce) on your behalf, and provide it to your spouse.

The applicant will then file the signed Acknowledgment of service with the Court to show that you have been served.

NOTE: Acknowledging that you have been served does not mean that you agree to the divorce being granted. If you oppose the divorce being granted, you must file a Response to divorce and attend the Court hearing or the Court may treat the Application for Divorce as undefended and the Divorce might be granted.

What else do I need to do?

If you agree with the facts in the application and want the divorce granted, you are not required to do anything further. You are also not required to attend the hearing. See Divorce hearing for details.

If you believe there is an error in the Application for Divorce filed by your spouse or you do not want the divorce to be granted, you will need to file (and serve) a Response to divorce.

If you oppose the divorce being granted, you must file a Response to divorce. You must also attend the Court hearing or the Court may treat the Application for Divorce as undefended and the divorce might be granted.

If the divorce is granted, it will be finalised one month and one day later, unless a special order is made by the Court to shorten or lengthen that time. You will then be able to access your divorce order online from the Commonwealth Courts Portal. For details see How do I prove I am divorced?.

What if the application has errors of fact?

If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file (and serve) a Response to divorce. You need to state which facts you disagree with in the Response to divorce.

The errors might, for example, be that dates of birth are incorrect or the details regarding the children have changed. You do not need to attend the court hearing.

Can I oppose a divorce application?

If you do not want the divorce granted, you must complete, file and serve a Response to divorce and attend the divorce hearing (see Divorce hearing).

There are limited grounds on which you can oppose the divorce and you should seek legal advice if you wish to oppose the Court granting a divorce.

You need to clearly set out the reasons why you do not want the divorce to be granted in the Response to divorce. 

When do I file the Response to divorce?

If you want to file a Response to divorce, you need to file it:

• if served in Australia – within 28 days of the application being served on you, or
• if served outside of Australia – within 42 days of the application being served on you.

For information about filing the Response see How do I eFile?

You must also serve the Response to divorce on your spouse. See How do I serve family law documents? for a step-by-step guide.

Do I have to attend the hearing?

If you file a response because you disagree with some of the facts in the application, but you are content for the divorce to be granted, you do not need to attend the court hearing. 

If you file a response opposing the divorce application you must attend the hearing. If you do not attend, the Court may make a decision about the divorce in your absence. You will only need access to a telephone to attend the divorce hearing electronically. See Divorce hearing.
 

Divorce is the legal end of a marriage. Australia has ‘no fault’ divorce. This means that when granting a divorce, the Court does not consider why the marriage ended or what caused the marriage to breakdown. The only ground for divorce is that the marriage broke down and there is no reasonable chance that the parties will resume their relationship as a married couple.

The granting of a divorce does not determine issues of financial support, property division or arrangements for children but there are a number of legal consequences that can flow from a divorce order.

Can I apply for a divorce?

You must meet each of the criteria below:

Separated for at least 12 months

You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. 

It is possible to be separated but remain living in the same home during the 12 months before applying for divorce. This is known as being separated but living under one roof.

Able to apply for divorce in Australia

You can apply for a divorce in Australia if either you or your spouse:

• are an Australian citizen, or
• regard Australia as your home and intend to live in Australia indefinitely, or
• ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Have your marriage certificate

You must provide the Court with a copy of your marriage certificate.

If your marriage certificate is not in English, you need to file an Affidavit translation of marriage certificate attaching both a copy of the original marriage certificate and the translation that was prepared.

If you are not able to find your marriage certificate or to obtain an official copy, you must provide evidence to show that the marriage occurred and explain why it is not possible to obtain formal proof of your marriage. If you cannot provide proof that you are legally married, you may need to file an Initiating Application for a declaration that your marriage is valid.  

Arrangements for children

A divorce does not determine what parenting arrangements should be in place for children. However, before a divorce can be granted, the Court must make one of the following declarations:

• That there are no children of the marriage under 18 years of age,
• That there are satisfactory arrangements in place for any children under 18 years of age, or
• That the Court is satisfied that there is a good reason the divorce should be granted even if there are not satisfactory arrangements in place for the children. 

The Application for Divorce will ask you to provide information about any children who were treated as members of the family prior to separation. It does not matter if the children are not your biological children.

You need to provide sufficient detail about how the child/ren spend time and communicate with each parent if at all, their education, health and financial support, and the reasons those arrangements are in place. If you cannot give this information, you will need to explain why. 

If the information given is not sufficient, the Court may adjourn your application for you to provide more information. 

The granting of a divorce does not decide issues about finances or property and maintenance or parenting arrangements for your children.

Other family law proceedings

Time limitations exist if parties are divorced and wish to apply for financial or property orders. Once a divorce is final, you have 12 months to file an application for financial or property orders. 

If you do not file in that time-frame, you will require permission from the Court before filing an application, and you may be prevented from seeking financial or property related orders. See Financial or Property for more information.

You should consider getting legal advice about other potential consequences of a divorce including in relation to your Will.

When can I remarry?

You must not remarry until your divorce order becomes final. In most cases, this is one month and one day after the divorce hearing. The divorce process takes time, and you should not assume the divorce will be granted at the first court hearing. 

If your application is deficient or the Registrar has questions about a particular part of your application, you may be asked to provide more information, this may involve an adjournment if you are required to file more evidence.

Further reading

How to apply for a divorce (PDF, 2.5 MB)
This flowchart shows you how to apply for a divorce in the Court, whether you are doing so together with your spouse, or on your own. It also includes checklists of key documents you may need to provide to the Court in support of your application, and helpful links to other resources that may assist.

The Family Law Practice Direction – Divorce proceedings (FAM-DIVORCE) sets out the procedure the Court will follow to determine your divorce application. 

Legal advice

If you need help to complete the application or are unsure about whether you are eligible to file for divorce, you should obtain legal advice. For more information see Legal help.

The Family Relationship Advice Line (FRAL) can help you with free legal advice and information about services available to assist anybody with family relationship issues - call 1800 050 321 (+61 7 3423 6878 if you are overseas).

Legal Aid NSW have a step-by-step interactive guide to help you apply for a divorce in Australia, called Do Your Own Divorce. The guide includes ‘how to’ videos, checklists and links that will help you fill out the divorce application. You can access it at this website: Do Your Own Divorce - Overview