Australia’s Family Law Act 1975 is the federal statute governing divorce, parenting arrangements after separation, division of property, spousal maintenance, and responses to family violence for both married and de facto couples. Its defining feature is no-fault divorce: the court does not ask who caused the breakdown, only whether the marriage has ended. Amendments that commenced on 6 May 2024 substantially reshaped the parenting framework, so understanding the Act now means understanding both its longstanding structure and the recent changes.
How Divorce Works
Under section 48, a court will grant a divorce only if satisfied the marriage has broken down irretrievably. The only evidence required is that the couple has lived separately and apart for a continuous period of at least 12 months, with no reasonable likelihood of resuming the relationship. Conduct during the marriage is not investigated.
Living under the same roof does not automatically defeat a separation claim. Financial pressure, housing shortages, or childcare logistics often make it impractical to move out immediately. In those cases, an applicant usually files an affidavit setting out concrete changes: sleeping in different rooms, separating finances, ending shared social life, and telling family, friends, and Services Australia about the split.
Applications are filed with the Federal Circuit and Family Court of Australia. The filing fee is $1,125, with a reduced fee available to concession card holders and those who can show financial hardship.1Federal Circuit and Family Court of Australia. Family Law Fees Either spouse can file alone or the couple can apply jointly. Where there are children under 18, the applicant must attend a hearing; without minor children, the application can often be dealt with on the papers.
A divorce order ends the legal marriage and nothing more. It does not resolve property, superannuation, spousal maintenance, or parenting. Each of those runs on its own track, with its own deadlines. A divorce order takes effect one month and one day after the court grants it, and once it does, the clock starts running on property claims.
De Facto Couples
Since 1 March 2009, the Act has covered de facto couples across most of Australia, including same-sex partners. Section 4AA defines a de facto relationship as two people, whether of the same or opposite sex, living together as a couple on a genuine domestic basis, without being married or related by family.2Federal Circuit and Family Court of Australia. De Facto Relationships Parenting disputes for de facto families are handled identically to those for married couples.
For property and financial claims, a de facto applicant must show the relationship was genuine and meets at least one of four gateway criteria: it lasted at least two years, there is a child of the relationship, it was registered under state or territory law, or a party made significant contributions and failing to make an order would cause serious injustice.2Federal Circuit and Family Court of Australia. De Facto Relationships Applications must be filed within two years of separation; after that, court permission is needed.
Parenting Decisions and the 2024 Changes
Parenting disputes are decided under section 60CC, which was substantially rewritten by the Family Law Amendment Act 2023, commencing 6 May 2024. The previous framework used two tiers of considerations and a presumption of equal shared parental responsibility. That presumption is gone.3Parliament of Australia. Family Law Amendment Bill 2023 There is now a single consolidated list of factors, and the court is not required to give any one more weight than another. The overriding principle is unchanged: every decision must promote the best interests of the child.
The factors the court considers are:
- What arrangements best protect the child from exposure to family violence and child abuse.
- Any views the child has expressed, with the weight depending on maturity and understanding. Where an Independent Children’s Lawyer is appointed, they must meet the child to seek those views.
- The child’s psychological, emotional, and cultural needs, including lifestyle, traditions, and any developmental concerns.
- Each parent’s ability and willingness to provide for those needs, including their readiness to seek support when needed.
- The benefit of the child maintaining a relationship with both parents and other significant people, where it is safe to do so.
- Any other matter relevant to the family’s circumstances.
For Aboriginal and Torres Strait Islander children, the court must separately consider the child’s right to enjoy and maintain connection to culture, community, language, and land. That is a standalone requirement, not a subheading under general needs.
What Removing the Presumption Actually Changes
Under the old law, courts started from a presumption that both parents should share responsibility for major long-term decisions, and then had to consider equal time or substantial and significant time. That pathway caused widespread confusion, and many people believed the law guaranteed 50/50 time when it never did. The 2024 amendments eliminate the two-step pathway.3Parliament of Australia. Family Law Amendment Bill 2023 Judges now assess each family on its facts without a presumptive starting point. Shared decision-making or equal time can still be ordered where it serves the child’s best interests, but there is no legislative thumb on the scale requiring it.
Division of Property
Property settlement follows a structured approach under section 79. The court first identifies the total pool of assets and liabilities: real estate, bank accounts, shares, vehicles, business interests, debts, and superannuation. Everything either party owns or owes, held jointly or individually, goes into the pool.4Federal Circuit and Family Court of Australia. Financial or Property – Overview
Next, the court assesses each party’s contributions. Direct financial contributions include wages, salary, and property brought into the relationship. Indirect financial contributions include gifts and inheritances from family. Non-financial contributions cover renovations, running a business, or managing investments. Contributions to the welfare of the family, such as caring for children and running the household, carry real weight. The 2024 amendments added a further factor: the economic effect of any family violence on a party’s ability to contribute.
The court then turns to future needs under section 75(2). Age, health, earning capacity, care of children, and access to financial resources all feed into this step, and a party with lower income prospects or primary care of young children may receive a percentage adjustment in their favour. Finally, the court stands back and asks whether the overall outcome is just and equitable. That last step is a genuine check.
Superannuation
Superannuation is treated as property under the Act and is included in the asset pool. Superannuation splitting laws allow it to be divided between the parties, but splitting does not convert retirement savings into cash; the funds remain subject to preservation rules until retirement age.5Attorney-General’s Department. Superannuation Splitting For many families, super is the second-largest asset after the family home, which makes accurate valuations essential before agreeing to any division.
Time Limits
Married couples must file any property application within 12 months of their divorce becoming final. De facto couples have two years from the date of separation.4Federal Circuit and Family Court of Australia. Financial or Property – Overview Beyond those deadlines, court permission is required and is not guaranteed. Missing these dates is one of the most costly mistakes people make after separation.
Formalising an Agreement
Parties can lock in a property settlement through consent orders or a binding financial agreement. Consent orders are written agreements approved by the court, carrying the same force as a judge’s order but usually handled on the papers. A binding financial agreement under sections 90B or 90C (for married couples) or 90UB or 90UC (for de facto couples) does not need court approval, but each party must first receive independent legal advice from a separate Australian legal practitioner.6Federal Circuit and Family Court of Australia. Financial or Property – Financial Agreements Skipping that advice requirement can render the entire agreement unenforceable.
Spousal Maintenance
Spousal maintenance is a separate question from property division. A person has a responsibility to financially support their spouse or former de facto partner if that person cannot meet their reasonable expenses from personal income or assets, and the other party has the capacity to pay.7Federal Circuit and Family Court of Australia. Financial or Property – Spousal Maintenance Both parties carry an equal duty to maintain each other where the need exists, and the obligation can continue after divorce.
Common grounds include caring for young children, health conditions that limit employment, or extended time out of the workforce during the relationship. The court weighs what the applicant reasonably needs against what the other party can afford after meeting their own living expenses. Orders can be periodic or a lump sum. The standard of living during the relationship is relevant but not determinative, and courts recognise that running two households costs more than one.
Family Violence
Section 4AB defines family violence broadly as violent, threatening, or other behaviour that coerces or controls a family member, or causes them to be fearful.8Department of Social Services. Family Assistance Guide – 1.1.F.15 Family Violence The definition reaches beyond physical assault to sexual abuse, stalking, repeated degrading insults, destroying property or harming animals, isolating someone from family and friends, and controlling access to money. Economic abuse is explicitly covered.
Section 114 empowers the court to grant injunctions for personal protection within family law proceedings. These can restrain a party from entering or remaining at the family home, the other party’s residence, or their workplace, and they operate alongside state and territory intervention orders issued through local magistrates’ courts. Serious contraventions of family court orders can attract fines, community service, bonds, or imprisonment of up to 12 months.9Australian Law Reform Commission. Injunctions for Personal Protection
Family violence findings also reshape substantive outcomes. Safety from family violence and child abuse is the first factor on the best-interests list, and established violence now feeds into property division through its economic effect on a party’s ability to contribute.
Family Dispute Resolution Before Court
Before filing a parenting application, parties must make a genuine effort to resolve the dispute through Family Dispute Resolution. That means attending sessions with an accredited FDR practitioner who helps the parties negotiate arrangements for their children outside the courtroom.10Federal Circuit and Family Court of Australia. Compulsory Pre-Filing Family Dispute Resolution
At the end of the process, the practitioner issues one of five types of section 60I certificate, covering scenarios such as one party refusing to attend, FDR being inappropriate, both parties making a genuine effort without reaching agreement, or one party not engaging meaningfully.11Attorney-General’s Department. Section 60I Certificates for Family Dispute Resolution The certificate must be filed with any subsequent court application and is valid for 12 months from the date of issue.
Exceptions apply in urgent situations. Where there are reasonable grounds to believe a child is at risk of abuse, or family violence has occurred, the FDR requirement may not apply, and the applicant can seek an exemption from the court when filing.
Successful FDR often produces a parenting plan, which is a written agreement between the parties. A parenting plan is not enforceable as a court order on its own, but it can be converted into consent orders by filing it with the court. Many families resolve matters at this stage without ever seeing a judge.
What the Act Does Not Cover: Child Support
Child support does not sit under the Family Law Act. It runs on its own legislation, the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, and is administered by Services Australia rather than the family courts.12Department of Social Services. Child Support The formula draws on each parent’s income, the time the child spends with each parent, and the estimated costs of raising children in Australia. Parents who consider the calculated amount unfair can apply for a change of assessment. Payments can be arranged privately or collected and transferred by Services Australia. The Family Law Act still permits child maintenance orders in limited circumstances, mainly where the administrative system does not reach a particular expense.