Statistics show that in 2021, there were 89,164 marriages registered in Australia, which is lower than pre-pandemic numbers but higher than the historic low of 78,989 in 2020. The impact of the COVID-19 pandemic, including public health orders and restrictions, affected couples' marriage plans, especially during the Delta wave from June 2021 onwards.

Comparing 2021 to previous years:

•  Marriages in New South Wales and Victoria were down 31.0% and 34.6% respectively compared to 2019.
• The crude marriage rate in 2021 was 3.5 per 1,000 people, higher than 3.1 in 2020 but lower than 4.5 in 2019.

Regarding same-sex marriages, there were 2,842 same-sex marriages registered in 2021, accounting for 3.2% of all marriages. While there has been a decrease in same-sex marriages each year since their introduction in 2017, the largest decrease occurred between 2019 and 2020 during the COVID-19 pandemic.

Registered relationships, an alternative to marriage available in most states and territories, remained stable during the pandemic, with 19,190 relationships registered in 2021.

In terms of divorces, there were 56,244 divorces granted in Australia in 2021, a 13.6% increase compared to 2020. The higher number of divorces can be attributed in part to administrative changes that increased finalizations and reduced timeframes, leading to more divorces being processed. The crude divorce rate in 2021 was 2.2 divorces per 1,000 people, reaching a level last recorded in 2011 and 2012.

The characteristics of divorces remained relatively stable over time. In 2021, the median duration of marriage before divorce was 12.2 years, and 47.8% of divorces involved couples with children under 18 years. The median age at divorce was 45.9 years for males and 43.0 years for females.

Divorce rates varied among different age groups, with the highest rates for males aged 40 to 44 years and 45 to 49 years, and for females aged 40 to 44 years.

Divorce numbers increased in all states and territories in 2021, except for the Australian Capital Territory, where caution should be exercised due to divorces granted to residents of other states and territories.

Same-sex divorces accounted for 473 cases in 2021, including 306 divorces for female same-sex couples and 167 divorces for male same-sex couples. Before 2021, data on same-sex divorces were not separately identifiable.

How much does an average divorce cost in Australia?

between $50,000 and $100,000?

“What is the average cost of a divorce or separation in Australia? According to Money Magazine, the average cost is between $50,000 and $100,000 and can take up to 3 years if going through to Court.” This is clearly wrong!

From $400 to $1,500 from our research for a simple divorce. What do you get for that? Lawyers charge at least $300 to $400 an hour so you don’t get much attention; or that is a misleading number.

How much do divorce lawyers make in 2023? Not much for the divorce, but once you get in and start, they may take advantage of the separation process, divorce is something that simple. The rest of it is not. Read more.

Why the big range?

Use Guided Self Help and do it yourself with guidance from us for around $500.

See below for what is excluded and what the Divorce Traps are.

Your separation journey and paths to divorce.

Use Guided Self Help whenever you need a senior lawyer. You decide and we have options to help you with professional legal services.

DIY Divorce

You and your ex-partner reach an agreement by yourselves and apply for a Joint Divorce Application.

Can suit couples who: 

• are amicable & trust each other; and
• can communicate well.

We suggest a quick review of your application, and this may cost you an hour or less professional time ($300 to $500) with Guided Self Help.

Engage us as a Meditator and assist you in your agreements for divorce, children, and finances.

A separate person will mediate and another lawyer draft agreements if required. Total Cost $1500 to $5000 plus Government fees.

You and your ex-partner engage one legally qualified Mediator to help you reach a fair agreement. The Mediator is impartial and not on anyone’s side.

Can suit those who:

• are amicable & trust each other
• can communicate reasonably well
• want to have more control over their separation; and
• have no history of family violence.

Independent Legal Advice

You and your ex-partner engage your own Lawyers to negotiate agreements on your behalf.

Will suit those who:

• are not amicable or can’t come to an agreement on their own terms
• don’t trust each other to be honest
• have complex finances
• still want to keep their settlement out of Court.

Having a Lawyer doesn’t have to mean inflaming tensions — all the Lawyers in our network are committed to de-escalation and Court as a last resort. Guided Self Help will save you at least 50% in legal fees.

Decisions by the Court- Use Senior Lawyers When You Need To and Not When You Don’t!

You, your ex-partner, and your Lawyers head to Court for an outcome. A Judge will make decisions about financial and parenting matters.

Yes, we can assist you through all the boring bits and you engage us just when you need us i.e. before important directions, mediations, and trial. Save 50% in typical fees.

1. Marriages less than 2 years old

Parties seeking a divorce application for a marriage that has lasted less than two years from the actual marriage date are required to undergo counselling to explore the possibility of reconciliation. Pursuant to Section 44(1B) of the Family Law Act 1975 (Cth), a certificate indicating that counselling has been sought must be provided to the court.

In accordance with Section 44(1C), the court has the discretion to grant leave and proceed with the divorce proceedings even if the parties have not pursued reconciliation, provided that the court is satisfied that there exist special circumstances justifying the continuation of the hearing.

2. Careful of Resuming Cohabitation and the Separation Period

Section 50 of the Family Law Act 1975 (Cth) aims to provide opportunities for separated parties to reconcile and aligns with Section 43(d) of the Act, which requires the court to consider means of assisting parties to a marriage in considering reconciliation. This section permits parties to resume cohabitation for a maximum period of three months, after which the separation period is nullified, and the parties must restart the separation afresh.

Under this provision, if there is only one instance of cohabitation for a duration of less than three months, the periods of separation preceding and following that resumption can be combined for the purpose of meeting the required 12-month separation period. However, in the case of Keyssner and Keyssner [1976] FamCA 41, it was determined that if there are multiple periods of resumption of cohabitation, the second and subsequent instances indicate that cohabitation has occurred on more than one occasion. As a result, the court rejected the divorce application in that case.

Therefore, it is crucial to consider the impact of resuming cohabitation on the separation period, as multiple instances of resumption can affect the determination of the required period of separation.

The Full Court made the following observations:

1. Separation does not necessarily require a mutual decision by both parties. It can be communicated through spoken or unspoken words and actions, indicating an intention to sever the marital relationship.
2. The determination of separation is a question of fact and depends on the circumstances of each case.
3. Section 49(1) of the Family Law Act 1975 (Cth) states that separation can occur even if it was initiated by only one party. While physical separation, such as one party leaving the matrimonial home, is often indicative of separation, there are situations, as outlined in Section 49(2), where separation may exist despite parties continuing to live under the same roof.
4.  

3. Separation Is Not A Breakdown Of A Marriage By Itself

The meaning of separation extends beyond physical separation and involves the breakdown of the marital relationship (consortium vitae). The elements of a marital relationship can vary for each couple, including living together, sexual intercourse, mutual society and protection, public and private recognition of the marriage. When asserting separation, it may be necessary to compare and contrast the state of the marital relationship before and after the alleged separation.

In the case of Jennings and Jennings (1997) FLC 92-773, where the parties lived together until the husband's hospitalization, the court found no separation had occurred because neither party had formed an intention to sever the relationship.

In Price v Underwood [2008] FamCAFC 46, the court emphasized that separation goes beyond physical living arrangements. The husband's intention to separate must be effectively communicated to the other party, and physical separation alone does not necessarily prove a breakdown of the marital relationship.

In Campbell & Cade, where the husband claimed separation from the date he moved out, the court considered the three elements of separation: intention to separate, action upon that intention, and communication of the intention. The court found that, despite physical separation, the parties were still acting as a married couple and dismissed the application for divorce.

Therefore, separation involves more than physical separation and requires an intention to sever the marital relationship, supported by corresponding actions and effective communication of that intention.

Arrangements for Children in Divorce Proceedings

When seeking a divorce, if there are children under the age of 18 involved, Section 55A of the Family Law Act 1975 (Cth) requires the parties to establish appropriate arrangements for the care, welfare, and development of those children.

Section 55A reflects a public policy objective to safeguard the children's best interests during the termination of their parents' marriage. The Full Court emphasized in Navarro & Jurado [2010] FamCAFC 210 that the declarations made under Section 55A(1) are an integral part of the divorce process and should not be treated as mere formalities.

Although the Act does not provide a specific definition for "care, welfare, and development," in Opperman & Opperman [1978] 20 ALR 685; FLC 90-432, the Full Court stated that the party seeking relief bears the burden of presenting sufficient evidence to convince the court that the arrangements made, both material and emotional, are in the children's best interests given the circumstances.

Section 55A(1)(b)(ii) allows a divorce to be granted even if the court is not satisfied that proper arrangements have been made for the children, provided there are circumstances warranting the divorce order to take effect.

In the case of In the Marriage of Maunder [1999] FamCA 1430; (1999) FLC 92-871, the court took a vigorous approach to this matter. The husband had applied for a divorce, while the wife filed applications for property settlement, spousal maintenance, and child maintenance. The wife opposed the divorce application, expressing concerns about the children's well-being and the husband's absence from Australia.

The divorce application was presented before Justice Frederico, who declared under Section 55A(1)(b)(ii) that proper arrangements had been made for the children and granted the divorce. However, the wife appealed, and the Full Court allowed the appeal, finding that it could not be satisfied those adequate arrangements had been made for the children. As the husband was outside the court's jurisdiction and not subject to its procedural orders, the court emphasized the positive obligation placed on it by Section 55A to protect the interests of children in divorcing families.

If the court is not satisfied that proper arrangements have been made for the children, it is prohibited from granting a decree of divorce. Section 55A mandates a comprehensive consideration of the welfare arrangements for children in divorce cases, reflecting a firm policy to prioritize their well-being.

Take extreme care here as you have time limits after divorce to being an application for financial matters. It's 12 months for divorce and 24 months after a de-Facto relationship ending.

These time limits are rarely extended.

That’s why we recommend doing financial separation before divorce or at the same time!

Public Policy Is Important

In the Marriage of Dornom and Dornom, the parties were married in Australia while they were domiciled there. The husband obtained a divorce in California, and later, the wife filed for divorce in Western Australia, contesting the recognition of the Californian divorce. Section 104(5) of the Family Law Act 1975 (Cth) governed the recognition of the Californian divorce decree. However, there was no evidence regarding the husband's intention or whether California had become his domicile of choice. At the time of his divorce application, he was residing in California for seven to eight months. The only factor available for consideration was a real and substantial connection between the husband and California. Barblett J concluded that there was a real and substantial connection between the husband and California as he served the wife with the divorce application and complied with procedural requirements. Barblett J highlighted the important public policy considerations of recognizing decrees from different nations as a matter of comity between courts.

This case highlights the significance of public policy considerations and why parties may choose to rely on a divorce order from an overseas jurisdiction or Australia. One reason is the different time limits that may apply for making applications in court, particularly regarding property and maintenance matters. In some jurisdictions, divorce, property, and maintenance applications are not separate, such as in England. This could result in individuals being unable to pursue property or maintenance claims if they are not granted leave to file their applications in the relevant jurisdiction.

Domicile is Confusing in Forum Disputes

Forum disputes in divorce cases were addressed in Ferrier-Watson v McElrath. In this case, the husband applied for a divorce in Australia, while the wife and children resided in Fiji throughout the marriage. The wife had initiated proceedings in Fiji for judicial separation and property settlement, but she did not seek a divorce due to social stigma. The husband rented a property in Australia and filed for divorce shortly after. The wife responded by objecting to the court's jurisdiction and requesting a permanent stay of the husband's divorce application. Since the husband was not an Australian citizen and had not been ordinarily resident in Australia for 12 months before filing the application, he had to establish domicile based on the balance of probabilities. The trial judge was satisfied that the husband had intended to make Australia his permanent home and granted the divorce. The wife appealed the trial judge's orders, but the Full Court upheld the finding of domicile, affirming that the Domicile Act 1982 (Cth) did not replace the entire common law and that residence alone was not the sole criterion for establishing domicile in a country.