What are the legal requirements to proceed in a family law matter?

Before starting family law proceedings in Australia, it is important to understand the legal requirements that may apply to your situation. Different rules can affect whether you are eligible to file for divorce, commence property settlement proceedings, apply for parenting orders, or enter into a financial agreement under the Family Law. These jurisdictional requirements can become more complex when one party lives overseas, when there are de facto relationship issues, or when children are involved.

To apply for a divorce in Australia, certain legal and jurisdictional requirements must first be satisfied under the Family Law Act 1975. These requirements determine whether the Federal Circuit and Family Court of Australia has authority to deal with the divorce application and whether the parties are eligible to proceed under the law.

Australian citizenship requirements

At least one party to the marriage must be an Australian citizen at the time the divorce application is filed with the court.

Residency and domicile requirements

A person may also be eligible to apply for divorce in Australia if they are ordinarily resident in Australia, domiciled in Australia, or have lived in Australia for a required period before filing the application.

Separation requirements

Before applying for a divorce, parties must have been separated for at least 12 months. This applies even where parties may have remained living under the same roof during part of the separation period.

Overseas living arrangements

It may still be possible to apply for a divorce in Australia even if one or both parties are living overseas, depending on their citizenship, residency, or domicile.

As per section 39 of the Family Law Act 1975 (Cth), to commence property proceedings in Australia, you or your ex-spouse must be:

• An Australian citizen; or
• Ordinarily resident in Australia; or
• Present in Australia on the day the application is filed in court. 

Therefore, if you are living overseas but wish to apply in Australia for a property settlement, you can file an application in Australia if you are an Australian citizen, if your ex-spouse is an Australian citizen, if your ex- spouse lives in Australia, or if you are in Australia on the day you file proceedings. 

We recommend you obtain independent legal advice from a family lawyer as to whether it is in your interests to commence property proceedings in Australia or, if applicable, overseas, before you take any steps to institute property proceedings.

Important time limits for property settlement proceedings

For married couples, applications for property settlement or spousal maintenance must generally be commenced within 12 months of a divorce order becoming final. If this time limit expires, permission from the court may be required before proceedings can continue.

Commencing property proceedings – de facto couples

There are additional jurisdictional requirements for de facto couples to commence property proceedings in Australia. 

As per section 90 SK of the Family Law Act 1975 (Cth), in order to make an order in relation to property for de facto couples, the Court must be satisfied that either or both of the parties to the de facto relationship were 'ordinarily resident'  in Australia when the application was made.

Eligibility requirements

To commence property proceedings, the court may consider factors such as where the parties lived during the relationship, whether one party made substantial contributions in Australia, and whether the relationship broke down while both parties were living in Australia.

Proving a de facto relationship

The court may assess factors including the duration of the relationship, shared finances, living arrangements, property ownership, parental responsibilities, and the overall nature of the relationship when determining whether a de facto relationship existed.

The legal process

Once eligibility requirements have been satisfied, de facto couples may apply for property settlement orders relating to assets, liabilities, superannuation, and financial interests. Preparing supporting documents and understanding the jurisdictional requirements early can help the process progress more efficiently.

Before commencing parenting proceedings in Australia, parents are generally required to attempt family dispute resolution (FDR) and obtain an FDR certificate before filing an application with the Federal Circuit and Family Court of Australia, unless an exemption applies. 

Parenting proceedings under Australian family law focus on the best interests of the child, parental responsibilities, and future child custody arrangements.

Before filing parenting proceedings, parents should:

• Consider whether family dispute resolution is required before court proceedings begin
• Obtain an FDR certificate unless an exemption applies due to urgency, family violence, or other circumstances
• Gather documents relating to parenting arrangements, communication, and parental responsibilities
• Ensure the child, or at least one party, satisfies the jurisdiction requirements under Australian family law
• Consider whether interim parenting arrangements may be needed during proceedings
• Seek legal advice before applying for parenting orders through the family court

Time limits in Australian family law proceedings vary depending on the type of matter and may be extended only in limited circumstances. Missing a legal deadline can affect your ability to commence proceedings through the family court, particularly in property settlement and spousal maintenance matters.

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Alternatives to going to court for family law disputes 

Parties involved in family law disputes may be able to resolve matters without attending court through processes such as mediation, arbitration, or consent orders. Australian family law encourages parties to explore dispute resolution options where appropriate before commencing formal court proceedings. 

Family dispute resolution

Family dispute resolution is commonly used in parenting and family law matters to help parties negotiate arrangements outside of court.

• Encourages discussion and negotiated outcomes between parties
• Often required before parenting proceedings can begin

Mediation and arbitration

Mediation and arbitration can assist parties in resolving property settlement and financial disputes more efficiently than litigation.

• May reduce legal costs and court delays
• Can provide greater flexibility and privacy during the process

Consent orders

Where parties reach an agreement, they may apply to the family court for consent orders to formalise the arrangement.

• Can make parenting or property agreements legally binding
• May avoid the need for contested court proceedings

Guidance for your next steps in family law matters

Family law proceedings in Australia can involve different legal requirements, court processes, and time limits depending on the type of matter involved. Seeking legal advice early can help ensure your application, supporting documents, and procedural requirements are properly addressed before proceedings begin.