Divorce is a significant life decision, and if you’re considering it in Australia, you likely have questions about the legal process. One of the most common questions is: How long do you need to be separated before you can get a divorce?
The short answer is 12 months, but there’s more to it than just marking a date on the calendar. In this article, we’ll break down the separation requirements, what “separation” actually means, and how to navigate the process smoothly.
Understanding the 12-Month Separation Rule
In Australia, the Family Law Act 1975 governs divorce proceedings. According to the law:
- You must be separated for at least 12 months before applying for divorce.
- The separation can be under the same roof (we’ll explain this later).
- If you reconcile for less than 3 months during the separation period, the clock doesn’t reset—those months still count toward the 12-month requirement.
Why 12 Months?
The law requires this period to ensure that the marriage has genuinely broken down and that divorce isn’t an impulsive decision. It also allows time for couples to consider reconciliation or mediation.
What Counts as Separation?
Separation doesn’t always mean one person moves out. Here’s what you need to know:
1. Living Apart vs. Separated Under One Roof
- Living Apart: The most straightforward scenario—one or both partners move out, and you live separately.
- Separated Under One Roof: You can still be considered separated even if you live in the same house due to financial, parenting, or practical reasons. However, you’ll need to prove this separation to the court (e.g., through affidavits from friends or family).
2. Proving Separation
If you’re separated under one roof, the court may ask for evidence such as:
- Separate bedrooms
- Divided finances (separate bank accounts, bills)
- Telling friends/family about the separation
- Reduced shared activities (e.g., no longer attending social events as a couple)
3. Temporary Reconciliations
If you get back together briefly (less than 3 months), the separation period continues. However, if you reconcile for more than 3 months, the 12-month clock resets.
Exceptions to the 12-Month Rule
In rare cases, the court may consider an application before 12 months if:
- There are exceptional circumstances (e.g., domestic violence, urgent legal reasons).
- You can prove that staying married would cause severe hardship.
However, these cases are uncommon, and most couples must wait the full 12 months.
How to Apply for Divorce in Australia
Once you’ve been separated for 12 months, you can apply for divorce. Here’s how:
1. Eligibility
- You or your spouse must be an Australian citizen, permanent resident, or consider Australia your home.
- You must prove the marriage has broken down irretrievably (the 12-month separation is key here).
2. Filing the Application
- You can apply jointly (both spouses agree) or solely (one spouse applies).
- The application is submitted online via the Federal Circuit and Family Court of Australia (FCFCOA).
- There’s a filing fee (around $1,060 in 2024), but you may qualify for a reduced fee if you have a concession card or financial hardship.
3. Serving the Divorce Papers
- If you apply solely, you must legally serve the divorce papers to your spouse.
- If applying jointly, no service is required.
4. Court Hearing
- If there are no children under 18, the divorce may be granted without a court hearing.
- If there are children, the court will ensure proper care arrangements are in place before finalizing the divorce.
5. Divorce Order
- Once approved, you’ll receive a Divorce Order, which becomes final one month and one day after the hearing.
- Only then are you legally divorced.
Common Questions About Separation & Divorce
1. Can You Date During Separation?
Yes, but be cautious—dating during separation can complicate emotions and legal matters, especially if parenting or financial disputes arise.
2. Does Separation Affect Property Settlement?
No—property and financial settlements are separate from divorce. You can finalize property division before, during, or after divorce (but there are time limits—usually 12 months after divorce).
3. What If My Spouse Doesn’t Agree to Divorce?
Australia has a “no-fault” divorce system, meaning one spouse can apply even if the other disagrees. As long as you prove 12 months of separation, the divorce will proceed.
4. Can You Remarry Immediately After Divorce?
No—you must wait until the Divorce Order is finalized (one month and one day after the court hearing).
Final Thoughts: Is Separation the Right Step for You?
Deciding to separate is never easy, but understanding the legal requirements can help you plan your next steps. Remember:
✔ 12 months of separation is mandatory before applying for divorce.
✔ You can separate under one roof, but you’ll need evidence.
✔ Divorce is separate from property and parenting arrangements—handle those separately.
If you’re unsure about your situation, consulting a family lawyer can provide clarity and help you navigate the process smoothly.
What’s Your Experience?
Have you gone through a separation in Australia? How did you handle the 12-month requirement? Share your thoughts or questions in the comments—we’d love to hear from you!
Disclaimer: This article provides general information only and is not legal advice. For personalized guidance, consult a qualified family lawyer.
Would you like additional details on any part of the divorce process? Let us know!
