As experienced divorce lawyers, we’ve found that some of our most practical and valuable advice is often shared during face-to-face consultations. When recently asked, “What is your best advice for someone going through a divorce?” it made us realise that many important insights aren’t always communicated during the process. To help bridge that gap, we’ve compiled answers to the most frequently asked questions below—so you have clear, reliable guidance every step of the way.
DIVORCE
When can I apply for a divorce in Australia?
You can apply for a divorce after being separated for at least 12 months. This separation period must be continuous unless you reconcile for less than 3 months, in which case the clock resets after the reconciliation.
Can I apply for a divorce if we still live in the same home?
Yes. You may be considered "separated under one roof" if you can prove to the Court that your relationship has ended. Evidence may include sleeping in separate rooms, ceasing shared meals or finances, and presenting as separated to friends and family.
What if my spouse does not agree to the divorce?
Consent from your spouse is not required. As long as the criteria are met—including the 12-month separation period—you may apply for divorce unilaterally.
How long does the divorce process take?
Once filed, a divorce hearing is generally scheduled within 6 to 8 weeks. If granted, the divorce order becomes final one month and one day after the hearing date.
Can I get a divorce faster in urgent cases?
In exceptional circumstances, the Court may shorten the one-month waiting period before the divorce becomes final. This is at the discretion of the Court and requires supporting evidence.
How much does a divorce cost?
Legal fees typically start from $825 (plus government filing fees). Costs may vary depending on complexity, service issues, or contested matters.
What are the grounds for divorce in Australia?
Australia has a no-fault divorce system. The only ground required is that the marriage has irretrievably broken down, evidenced by a 12-month separation.
Do I need to attend Court for a divorce?
If you have children under 18, either you or your lawyer must attend the Court hearing to address parenting arrangements. For couples without minor children, attendance may not be required.
What happens if I was married overseas?
You can apply for divorce in Australia if you or your spouse is an Australian citizen, permanent resident, or has lived in Australia for at least 12 months. An English-translated and certified marriage certificate must be provided if the original is not in English.
Can I remarry immediately after a divorce?
No. You must wait until the divorce order becomes final—one month and one day after the Court grants the divorce. Remarrying before this is an offence under Australian law.
Can I remarry immediately after a divorce?
No. You must wait until the divorce order becomes final—one month and one day after the Court grants the divorce. Remarrying before this is an offence under Australian law.
What if I’ve been married for less than two years?
You must attend counselling with a family dispute resolution practitioner before applying for divorce. If counselling is not possible, you will need to submit an affidavit explaining the reasons.
What happens if I cannot locate my spouse?
You may still apply for divorce. However, you must prove to the Court that you made all reasonable attempts to locate and serve your spouse. This process may take longer and incur additional costs.
How is property divided in a divorce?
The Court considers various factors, including financial and non-financial contributions, the future needs of both parties, and whether the division is just and equitable. A 50/50 split is not guaranteed.
Can I finalise financial matters before the divorce?
Yes. You can negotiate and settle property or financial arrangements before, during, or after your divorce. However, any court application for property division must be made within 12 months of the divorce becoming final.
What if my spouse has wasted or hidden assets?
If one party has recklessly or deliberately wasted matrimonial assets (e.g. through gambling), the Court may consider this and adjust the property division accordingly.
Is family violence considered in property or parenting matters?
Yes. Proven family violence can impact both parenting and property proceedings. The Court may weigh its effects on the contributions and future needs of the affected party.
How is child custody decided in a divorce?
The Court prioritises the best interests of the child, considering safety, the child’s views (depending on age), relationships with each parent, and practical arrangements.
What is equal shared parental responsibility?
Shared parental responsibility means both parents are involved in making long-term decisions for the child. This does not automatically mean equal time, which depends on whether it is practical and in the child’s best interests.
Are stepchildren or foster children included in divorce considerations?
Yes. Children treated as part of the family prior to separation—such as stepchildren and foster children—are considered in parenting arrangements.
Can I revert to my maiden name after divorce?
Yes. You may resume your maiden name at any time, even before the divorce is finalised.
Can I change my children’s surnames after divorce?
Changing a child’s surname typically requires consent from the other parent or a Court order. Legal advice is recommended.
Will my divorce affect my Will or superannuation?
Yes. Divorce may invalidate provisions in your Will relating to your ex-spouse. You should update your Will, superannuation, and insurance nominations after divorce.
Do I need to be divorced to settle property or parenting issues?
No. Parenting and property matters can be resolved independently of your divorce, even if you are only separated. However, you must apply to the Court within 12 months of the divorce becoming final if you seek court orders for property or maintenance.
DIVORCE & MIGRATION – WHAT YOU SHOULD KNOW?
Will my Partner Visa be affected after applying for a divorce?
If you're on a Partner Visa (Subclass 820/801, Subclass 309/100) and have applied for a divorce, it could affect your visa application. If you were granted a temporary Partner Visa, the Department of Home Affairs may reassess whether the relationship was genuine and ongoing at the time of the application. If your divorce is because of family violence, you might still qualify for permanent residency. This is under the family violence rules.
Do I need to inform the Department of Home Affairs about my divorce after applying for a visa?
You need to tell the Department of Home Affairs if your relationship has ended or if you are getting divorced. This is important if you have a Partner Visa or are applying for one. This helps to keep your records accurate. Not notifying the authorities of a change in your relationship status could lead to complications or a visa refusal.
Can I apply for a Protection Visa after applying for a divorce?
Yes, if your divorce is due to family violence, you may qualify for a Protection Visa (Subclass 866). If you feel unsafe in your relationship, you can also apply for this visa. This visa allows individuals who fear persecution or harm to stay in Australia. If you are already in Australia, you can apply for this visa even after divorce proceedings have begun.
Will I lose my permanent residency after i divorce my Australian citizen spouse?
If you have a Partner Visa and divorce your Australian spouse, it may impact your chance for permanent residency. If your divorce is because of family violence, you may still qualify for permanent residency. This is under the family violence rules. You may also be able to stay on a Bridging Visa while you resolve your immigration status.
What happens to my dependent children’s visa status after my divorce?
If you have dependent children in your visa application, their visa status may change after your divorce. If you are granted a Partner Visa or Protection Visa based on family violence, your children may be eligible for dependent visas under the same provisions. You will need to notify the Department of any changes and provide documentation to support their continued eligibility.
Can I get a Bridging Visa after divorce if I no longer meet the requirements for my current visa?
If your divorce impacts your visa requirements, you might be able to apply for a Bridging Visa. This visa lets you stay legally in Australia while you apply for another visa or fix your immigration status. It’s important to consult a migration lawyer to understand your specific situation and options.
What should I do if I have already divorced but am still in Australia on a Bridging Visa or Partner Visa?
If you have divorced and are still in Australia on a Bridging Visa or Partner Visa, you should:
- Assess your visa options and explore new visa pathways (e.g., Protection Visa, Skilled Visa).
- Seek legal advice to ensure that you remain compliant with immigration laws.
- Notify the Department of your change in relationship status to avoid complications.
- Assess your visa options and explore new visa pathways (e.g., Protection Visa, Skilled Visa).
- Seek legal advice to ensure that you remain compliant with immigration laws.
- Notify the Department of your change in relationship status to avoid complications.
Will my visa status be affected if I divorce my partner?
Yes, your visa status can change if you are in a de facto or married relationship and you get a divorce or separate. For example, if you are on a Partner Visa (Subclass 820/801, Subclass 309/100), and the relationship ends, it could impact your eligibility for permanent residency. It's important to look at your options before starting a divorce. This is especially true if you are applying for a visa.
How does divorce affect my current migration visa?
Divorce may impact your visa if your current visa is dependent on your relationship. For example, if you have applied for a Partner Visa and the relationship ends, the Department of Home Affairs may reassess your eligibility for the visa. If your divorce is because of family violence, you may still qualify for the visa. This is under the family violence rules.
Should I finalize my divorce before applying for a Partner Visa or should I apply first?
It’s usually better to apply for the Partner Visa before you finalize the divorce. This is true if you are in a real and ongoing relationship when you apply. If the relationship is still intact, it will make the application stronger. If the divorce happens after you apply for the visa, you may need to show that the relationship was real when you applied.
What should I consider if I plan to divorce and want to apply for a new visa?
If you plan to divorce and then apply for a new visa (e.g., a Prospective Marriage Visa or a Protection Visa), you should consider:
- The potential impact of your divorce on your eligibility for the new visa.
- How the divorce may affect your status or ability to stay in Australia.
- You need to provide evidence of domestic violence if that was the reason for the divorce.
- Consult a migration lawyer to determine your best course of action.
- The potential impact of your divorce on your eligibility for the new visa.
- How the divorce may affect your status or ability to stay in Australia.
- You need to provide evidence of domestic violence if that was the reason for the divorce.
- Consult a migration lawyer to determine your best course of action.
Can I apply for a visa under family violence provisions before or after my divorce?
If your divorce is because of family violence, you might qualify for a visa. This applies even if the divorce is not finalized. You can apply for the visa during or after the divorce, as long as you provide sufficient evidence of the abuse.
Will I need to disclose the divorce on my visa application?
Yes, it’s important to disclose your relationship status, including divorce, on your visa application. Failure to disclose such information may result in visa refusal or complications with your application. Transparency about your relationship history, especially if family violence occurred, is crucial.
What impact will divorce have on my children’s visa status?
If you have children from the marriage, their visa status may be affected depending on your circumstances. If you add them to your partner visa application, the Department will see if they qualify based on your divorce results. It's important to understand their visa options and plan accordingly, especially if you are the primary guardian.
What are the legal requirements before filing for divorce if I am on a Partner Visa?
If you are on a Partner Visa and wish to divorce, you must be able to prove that the relationship has ended. If your divorce is because of family violence, you might still qualify for a Partner Visa. This is under the family violence rules. You may need to provide evidence of the separation and the finalization of the divorce.
How do I ensure I don’t lose my visa if I divorce?
To avoid losing your visa after a divorce:
- If you are on a temporary Partner Visa, you will need to prove the relationship was genuine when you applied. You may also need to provide evidence if your visa is based on your partner's sponsorship.
If your divorce is because of family violence, you might still qualify for permanent residency. This is under the family violence rules.
Talk to a migration lawyer. This will help you understand your rights and duties before, during, and after the divorce.
- If you are on a temporary Partner Visa, you will need to prove the relationship was genuine when you applied. You may also need to provide evidence if your visa is based on your partner's sponsorship.
If your divorce is because of family violence, you might still qualify for permanent residency. This is under the family violence rules.
Talk to a migration lawyer. This will help you understand your rights and duties before, during, and after the divorce.
Can I apply for a Protection Visa if I divorce my partner due to domestic violence?
Yes, if you divorce your partner because of domestic violence, you might qualify for a Protection Visa (Subclass 866). This visa allows individuals who are at risk of harm or persecution to remain in Australia. You need to show proof of domestic violence. This can include police reports, medical records, or statements from support groups.
How can I handle a divorce if I’m concerned about immigration fraud claims?
If you're concerned about potential fraud claims during your divorce, it’s important to:
- Provide clear documentation proving the legitimacy of your relationship at the time of application.
- Be transparent about your relationship history and the reasons for your divorce.
- Get legal advice from a family lawyer and a migration lawyer. This will help you handle divorce and visa issues carefully.
- Provide clear documentation proving the legitimacy of your relationship at the time of application.
- Be transparent about your relationship history and the reasons for your divorce.
- Get legal advice from a family lawyer and a migration lawyer. This will help you handle divorce and visa issues carefully.
Do I need to notify the immigration authorities if my partner and I have separated before the divorce is final?
Yes, you should inform the immigration authorities if you separate before your divorce is final. This is important, especially if your visa depends on your relationship. Providing updated information to the Department of Home Affairs is essential to ensure that your visa status is accurate.
Can I apply for a visa if I have already started divorce proceedings but have not finalized the divorce?
Yes, you can apply for a visa. This includes a Partner Visa or Protection Visa. You can do this even if divorce proceedings have started but are not finished. However, you must provide evidence of the relationship’s genuineness at the time of application. If you’re divorcing due to family violence, the family violence provisions may apply.
DIVORCE FOR NEPALESE LIVING IN AUSTRALIA
Can I get divorced in Nepal while living in Australia?
Yes, you can get divorced in Nepal while residing in Australia. You don’t need to travel to Nepal physically. Instead, you can appoint a Power of Attorney through the Nepalese Embassy in Australia to represent you.
How can I file for divorce in Nepal from Australia?
You can file for divorce by:
Drafting a Power of Attorney (अधिकृत वारेसनामा) through a registered Nepali lawyer,
Getting it certified at the Nepalese Embassy in Australia, and
Assigning a trusted individual in Nepal to represent you in court.
Drafting a Power of Attorney (अधिकृत वारेसनामा) through a registered Nepali lawyer,
Getting it certified at the Nepalese Embassy in Australia, and
Assigning a trusted individual in Nepal to represent you in court.
Do I have to go to Nepal for my divorce case?
No, physical presence is not required. A legally certified Power of Attorney can act on your behalf throughout the divorce process.
What is a Power of Attorney for divorce and why is it important?
A Power of Attorney is a legal document allowing someone you trust in Nepal to act on your behalf in court. It is essential for initiating and completing the divorce process without your physical presence.
Can I grant Power of Attorney from Australia?
Yes, you can grant Power of Attorney by visiting the Nepalese Embassy in Canberra. The Embassy will verify your documents and signature before issuing the Power of Attorney.
Who can hold a Power of Attorney in Nepal for divorce purposes?
Only Nepali citizens residing in Nepal can be granted Power of Attorney for representing you in divorce proceedings.
Where is the Nepalese Embassy located in Australia?
The Embassy of Nepal is located at:
📍 22 Kareelah Vista, O'Malley ACT 2606, Canberra
📞 Phone: (02) 6286 8006
📧 Email: eoncanberra@mofa.gov.np
📍 22 Kareelah Vista, O'Malley ACT 2606, Canberra
📞 Phone: (02) 6286 8006
📧 Email: eoncanberra@mofa.gov.np
Do I need to book an appointment with the Nepalese Embassy to process my Power of Attorney?
Yes, appointments are required to sign Power of Attorney documents at the Embassy. Contact the Embassy to schedule your visit.
Is it cheaper to get a divorce in Nepal than in Australia?
Yes, divorcing in Nepal is generally less expensive and procedurally simpler than in Australia, especially for Nepali citizens or couples. However, for some client there may be inconvenience, having to travel to Canberra to assign power of attorney.
Is a divorce granted in Nepal legally valid in Australia?
Yes, a divorce finalized in Nepal is legally recognized in Australia, provided it meets the procedural standards and documentation requirements.
What are the types of divorce available in Nepal for couples living in Australia?
1. Mutual Consent Divorce (आपसी सहमतिमा सम्बन्धविच्छेद) – When both parties agree.
2. Court-Ordered Divorce (अदालतको आदेशमा सम्बन्धविच्छेद) – When one party files independently due to disputes.
2. Court-Ordered Divorce (अदालतको आदेशमा सम्बन्धविच्छेद) – When one party files independently due to disputes.
What documents are required to issue a Power of Attorney from Australia?
✅Two original Power of Attorney copies (Nepali paper)
✅Original application (Nepali paper)
✅Citizenship certificate (original & copy)
✅Passport (original & copy)
✅Two passport-size photos
✅Lawyer’s citizenship certificate (notarized)
✅Two witnesses' signatures
✅Original application (Nepali paper)
✅Citizenship certificate (original & copy)
✅Passport (original & copy)
✅Two passport-size photos
✅Lawyer’s citizenship certificate (notarized)
✅Two witnesses' signatures
Can I assign my relative as Power of Attorney for my divorce?
Yes, as long as they are a Nepali citizen residing in Nepal and meet all the legal documentation requirements.
How long does it take to get a divorce in Nepal from Australia?
It depends on the nature of the divorce (mutual vs contested), court backlog, and document preparation, but mutual consent divorces generally proceed faster.
What happens to our property and assets if we divorce in Nepal?
The Power of Attorney can negotiate a property settlement. If there is no agreement, the court may determine the division of assets.
What happens to child custody during a Nepalese divorce?
Child custody and support matters are determined during the divorce process. It’s advisable to include these terms in the divorce agreement or request a separate court order.
Can my spouse refuse a mutual divorce filed in Nepal from Australia?
Yes, if your spouse disagrees, the matter will proceed as a contested divorce (court-ordered), and your representative will manage the process through the court.
Do witnesses need to physically attend the Embassy to sign the Power of Attorney?
If the Power of Attorney specifically requires witness presence at the Embassy, they must appear in person. Otherwise, they can sign remotely if mentioned only by name.
What if I change my mind after starting the divorce process in Nepal?
You can withdraw your application before the court issues a divorce decree. However, consult your appointed lawyer for the correct legal steps.
Is it possible to remarry in Australia after divorcing in Nepal?
Yes, once the divorce is finalized and recognized, you can remarry in Australia, provided your Nepalese divorce certificate is properly documented and translated if required.
Can I Get Divorced in Australia If I’m a Nepali Citizen?
Yes. You can apply for divorce in Australia if:
✅You are an Australian citizen (by birth, descent, or grant),
✅You are a permanent resident of Australia, or
✅You have been ordinarily living in Australia for at least 12 months before filing the application.
Even if your marriage took place in Nepal or overseas, you can divorce under Australian family law if you meet one of the above residency criteria.
✅You are an Australian citizen (by birth, descent, or grant),
✅You are a permanent resident of Australia, or
✅You have been ordinarily living in Australia for at least 12 months before filing the application.
Even if your marriage took place in Nepal or overseas, you can divorce under Australian family law if you meet one of the above residency criteria.
Do I Need My Spouse’s Consent to Divorce in Australia?
No. You can apply for a sole divorce application. While it’s ideal if both parties agree (joint application), a divorce can still proceed if only one party applies, as long as the 12-month separation period is satisfied.
What If My Partner Is in Nepal or Overseas?
You can still apply for divorce in Australia. Your lawyer will arrange proper service of documents to your spouse in Nepal or another country. The Family Court requires proof that your spouse has received the divorce application.
Do I Have to Attend Court for the Divorce Hearing?
Not always. If you have no children under 18 and filed a joint application, a court hearing is generally not required. If you applied solely and have children under 18, a court appearance will be necessary, either in person or via video link.
What Happens to Property, Children, and Financial Matters?
Divorce is a separate legal process from:
🔷Property settlement
🔷Spousal maintenance
🔷Child custody and parenting arrangements
These matters should ideally be resolved through a binding financial agreement or court order either before or after the divorce. You must commence property or financial matters within 12 months of the divorce becoming final.
🔷Property settlement
🔷Spousal maintenance
🔷Child custody and parenting arrangements
These matters should ideally be resolved through a binding financial agreement or court order either before or after the divorce. You must commence property or financial matters within 12 months of the divorce becoming final.
What If I Was Married in Nepal?
Australia recognises valid foreign marriages, including those solemnised in Nepal, as long as:
🔷The marriage was legal under Nepalese law, and
🔷Both parties were of legal marriageable age and capacity.
You can still apply for a divorce in Australia as long as you meet the residency criteria.
🔷The marriage was legal under Nepalese law, and
🔷Both parties were of legal marriageable age and capacity.
You can still apply for a divorce in Australia as long as you meet the residency criteria.
Can I Remarry in Australia After Divorcing?
Yes. Once the divorce order becomes final (usually 1 month and 1 day after the hearing date), you are legally free to remarry.
Should I Apply for Divorce in Australia or Nepal?
Each option has pros and cons:
Divorce in Australia:
🔷Legally recognised in Australia
🔷Easier to manage property division, spousal maintenance, and children’s matters under Australian law
🔷Useful if both or one party resides in Australia
Divorce in Nepal:
🔷May be cheaper
🔷Can be done via Power of Attorney
🔷Suitable for mutual divorce without assets or complications in Australia
Note: If you divorce in Nepal and live in Australia, ensure your divorce is properly documented for Australian legal and immigration purposes.
Divorce in Australia:
🔷Legally recognised in Australia
🔷Easier to manage property division, spousal maintenance, and children’s matters under Australian law
🔷Useful if both or one party resides in Australia
Divorce in Nepal:
🔷May be cheaper
🔷Can be done via Power of Attorney
🔷Suitable for mutual divorce without assets or complications in Australia
Note: If you divorce in Nepal and live in Australia, ensure your divorce is properly documented for Australian legal and immigration purposes.
Disclaimer: The information supplied in the FAQs section is intended as a guide only. It is not a substitute for proper informed legal advice. You should always consult a family lawyer before acting on any of these questions.
