How Divorce Works in Western Australia

At Vogt Legal, we help clients understand and manage every step of the divorce and separation process in Western Australia.

Divorce is the most straightforward type of marriage dispute.

This is because divorce is only about ending a marriage relationship.

Divorce applications do not decide marital disputes about property, maintenance or children.

According to the Family Court of Western Australia Annual Review 2024, the Family Court of Western Australia received 5,741 divorce applications in 2024 and 3,241 applications for consent orders (of which 90.1% were for financial issues only).

These statistics show that most couples end their marriage formally and settle issues about money and children privately without further litigation.

Grounds for Divorce: Irretrievable breakdown (s48, Family Law Act 1975)

A court may grant a divorce if it is satisfied that the marriage has broken down irretrievably. This is sometimes called the ‘no-fault’ rule.

The ‘no fault’ rule means that no blame is assigned to either party for the divorce. It follows that the Family Court does not need to know why you are getting divorced. It is not necessary to prove that one of parties to the marriage committed adultery, desertion or other unreasonable behaviour.

All you need to prove is that there has been an irretrievable breakdown of the marriage, and there are no prospects of reconciliation.

This usually means there is nothing to fight about legally in divorce proceedings. Divorce cases are usually uncontested, and many are filed as joint applications.

To prove irretrievable breakdown, the parties must show:

• 12 months’ separation; and,
• No reasonable prospect of reconciliation.

Separation and what it means (s48 and s49, Family Law Act 1975)

You can be separated even if you still live in the same home. This is known as “separation under one roof.”

Examples of separation include:

• Sleeping in separate bedrooms
• Ceasing to act as a couple
• Telling others that the relationship has ended

If spouses briefly resume living together for less than three months and separate again, the two periods of separation are added together.

It is important to remember the date of separation because you’ll need to write it on the divorce application form.

Divorces and children (s 55A, Family Law Act 1975)

The Family Court will not grant a final order of divorce unless it has made a finding about the well-being of your children.

The Family Court must be satisfied that:

• there are no children were born of the marriage under 18 years of age; or
• proper care arrangements have been made for all children.

The Family Court looks at the whole picture to see if proper arrangements for children have been made. This includes:

• where the children will live;
• how the children will be cared for;
• how their growth and general welfare will be handled;
• the child’s bond with each parent and with their siblings.

If the Family Court doubts that proper arrangements for children have been made, it can adjourn the divorce proceeding ask for a report from a family consultant regarding those arrangements before finalising the divorce.

When a divorce becomes final (s55 and s5, Family Law Act 1975)

A divorce does not become final right away.

It becomes final one calendar month and one day after the court makes the divorce order.

During that month:

• The parties can reconcile and apply to rescind the divorce order. This provides the parties with a cooling off period.
• Either party may appeal the decision. Divorce orders are unappealable once they come into effect.

The court has the power to lengthen or shorten this one-month period.

After the divorce comes into effect, both parties may re-marry.

After a divorce is final, parties have one year to apply for property adjustment orders.

Read more about property settlement disputes here.

How to apply for Divorce in Western Australia

To get divorced, at least one party to the marriage must:

• Be an Australian citizen; or
• Regard Australia to be their permanent home; or
• Have lived in Australia as an ordinary resident for the past year.

You will need to:

• Provide a copy of your marriage certificate to the Family Court
• Prove citizenship or residency (if born overseas)
• Complete the Form 3 – Application for Divorce
• Swear an affidavit of evidence about the breakdown of your marriage and explaining when the parties separated
• Lodge the Form 3 – Application for Divorce and affidavit on the eCourts Portal of Western Australia; and,
• Pay the filing fee (on 1 July 2025, the standard filing fee was $1,125, and the concession fee was $375).

Divorce Lawyers Perth

We help clients across Western Australia prepare, file, and finalise divorce applications efficiently.

If you’re seeking divorce advice in Perth, contact Vogt Legal for legal advice.

Frequently Asked Questions – Divorce in Perth, Western Australia

My partner and I want to get divorced. What should we do?

If both partners agree to end the marriage, you can file a joint divorce application through the Family Court of Western Australia.

A joint application is the simplest and fastest way to get divorced because:

·         You do not need to serve documents on your spouse.

·         You usually do not have to attend court.

·         The Court processes the application electronically through the eCourts Portal.

To apply jointly, you and your spouse must have been separated for at least 12 months, even if you still live under one roof.

You’ll need your marriage certificate, proof of citizenship or residency, and the completed Form 3 – Application for Divorce.

If you and your partner agree, Vogt Legal’s divorce lawyers can help you prepare and file the joint application online quickly and correctly.

 I have been served with a divorce application. What should I do?

If you’ve been served with a divorce application in Western Australia, it helps to understand that divorce applications are usually procedural and not about property, money, or children.

Disputes about property, money or children are separate proceedings in the Family Court.

Under Australia’s no-fault divorce system, you generally cannot oppose a divorce simply because you disagree with it or do not want it to proceed.

 The Family Court will grant a divorce if it is satisfied that the marriage has broken down irretrievably, evidenced by separation for 12 months or longer.

 Defences to divorce applications may include:

·         The parties have not been separated for 12 months; or

·         Neither party is an Australian citizen, or permanent resident, or has lived in Australia for less than 12 months.

If you agree with the application, you don’t necessarily need to do anything further, although we do recommend that you take legal advice from a competent family lawyer.

If you disagree with the divorce application, you must file a Response to Divorce (Form 3A) within the applicable time period.

For advice about defending a divorce applicant, contact Vogt Legal for practical guidance.

Who gets custody of the children after a divorce in WA?

The Family Court will not grant an order for divorce unless it is satisfied that adequate arrangements have been made for the children.

The Family Court’s foremost duty in any case which involves children is to take into account the best interests of the child.

The Family Court must consider the following factors when weighing up the best interests of the child (s60CC, Family Law Act 1975):

·         The child’s safety

·         The child’s wishes and needs

·         The parents’ ability to meet those needs

·         The benefit of meaningful relationships with both parents

·         Anything else relevant to the child’s own unique situation

If both parents have agreed on orders and ask the Family Court to make them, the Family Court may, but does not have to, take into consideration all the matters listed above.

Am I entitled to (or will I have to pay) spousal maintenance after divorce in Western Australia?

There is no automatic right to receive, or duty to pay, spousal maintenance after a divorce.

Whether you are entitled to receive spousal maintenance, or will have to pay it, depends on:

·         Whether there is a need for financial support; and

·         Whether there is a capacity to pay for that support.

The Family Court will weigh up a wide range of factors determine whether spousal maintenance should be paid, including either party’s income, assets, ability to work, the care of children and how the marriage affected their capacity to earn an income.