Ending a marriage is never easy, and Australian law has specific requirements that must be met before a divorce can be granted. The primary requirement is the 12-month separation rule, which serves as the foundation for divorce applications nationwide. If you’re considering divorce or are already separated, understanding this rule is essential for proceeding with CG Legal Group processes correctly.
Key Takeaways
Table of Contents
The 12-Month Separation Rule Explained
Legal basis
The Family Law Act 1975 establishes the framework for divorce in Australia. This legislation introduced the concept of no-fault divorce, meaning couples don’t need to prove wrongdoing to end their marriage. Instead, they must demonstrate their marriage has irretrievably broken down, with the primary evidence being 12 months of separation.
Basic requirement
Being “separated and living apart” means you and your spouse have ceased living together as a married couple. This involves not only physical separation in most cases but also an end to marital relations, household responsibilities, and social activities as a couple. The law requires this separation to have continued for at least 12 months immediately before filing your divorce application.
Who this rule applies to
The 12-month separation rule applies specifically to legally married couples seeking divorce. De facto relationships follow different legal processes for separation and property settlements that don’t involve this waiting period for relationship dissolution.
How the 12 months is calculated
The 12-month period must be continuous and immediately precede your divorce application. The separation date is the day when one or both parties communicate that the marriage is over. Recording this date accurately is important, as it’s the starting point for calculating your 12-month period.
Separation Under One Roof
What “separation under one roof” means
Not all couples physically separate households when their marriage ends. Financial constraints, childcare arrangements, or property issues may necessitate continuing to live in the same home despite the relationship being over. This is known as “separation under one roof” and is recognised by Australian courts, though it requires additional evidence.
Key indicators of separation under one roof
Courts look for clear changes in the relationship dynamic when assessing separation under one roof, including:
“Separation under one roof cases require careful documentation of how daily life has changed since the relationship ended. The more evidence you can provide of separate lives being led within the same household, the stronger your application will be.” – CG Legal Group
Evidence courts may accept
To prove separation under one roof, courts typically require:
Setting and recording a separation date
When separating under one roof, clearly communicate your intention to end the marriage to your spouse, ideally in writing. Keep records of any changes to household arrangements, financial separations, or communications that demonstrate the relationship has ended.
Exceptions and Special Situations
Are there routine exceptions?
The 12-month separation requirement is relatively strict in Australian family law. There are few routine exceptions that allow couples to bypass this waiting period entirely.
Impact of reconciliation
If you attempt reconciliation during the separation period, this can affect your 12-month countdown. A reconciliation lasting less than 3 months may be allowed without restarting the 12-month period, provided the total separate time still adds up to 12 months. However, reconciliations longer than 3 months typically reset the separation clock.
When one partner refuses to acknowledge separation
A divorce application can still proceed if one party refuses to acknowledge the separation. The court will consider objective evidence of separation rather than requiring mutual agreement. This might include testimony from witnesses, financial records, or evidence of separate living arrangements.
Evidence and Documentation
Statements and sworn documents
Prepare affidavits or statutory declarations that clearly state the separation date and circumstances. These documents should describe how the relationship ended and the practical changes that followed.
Financial and household records
Gather evidence showing practical separation, such as:
– Separate bank accounts
– Rental agreements or property documents
– Utility bills showing separate addresses
– Correspondence addressed to you individually
Third-party evidence
Statements from family members, friends, or colleagues who can confirm your separation status can strengthen your application, particularly in separation under one roof cases.
Steps to File for Divorce After Separation
Eligibility checks
Before filing, confirm you meet all eligibility requirements including:
– Valid Australian marriage
– Australian citizenship or residency
– Completed 12-month separation period
– Proper arrangements for any children under 18
Filing options
You can file your divorce application through the Federal Circuit and Family Court of Australia, either online or via paper forms. Filing fees apply, though fee reductions may be available for eligible applicants.
After filing
Once filed, your application needs to be properly served on your spouse (unless it’s a joint application). The court will then review your application and may schedule a hearing, particularly if there are children under 18.
Property and parenting matters
Remember that divorce only ends the marriage legally. Property settlements and parenting arrangements can be handled separately and have different timeframes – typically within 12 months after divorce finalization.
Common Misconceptions
De facto relationships and the 12-month rule
De facto couples don’t need to follow the 12-month separation rule, as their relationships don’t require formal dissolution. However, they do have rights regarding property and financial settlements after relationship breakdown.
Overseas separation periods
Separation while living overseas does count toward your 12-month period, provided you meet Australian residency or citizenship requirements when filing.
Brief reconciliations
Short reconciliation attempts (under 3 months) may not completely restart your separation period, but they will pause the clock during the reconciliation.
Divorce and asset division
Obtaining a divorce doesn’t automatically settle property matters. These are separate legal processes, and property settlements should ideally be completed within 12 months of your divorce becoming final.
Whether you’re considering separation or have already completed the 12-month period, understanding these requirements helps you navigate the divorce process more confidently. If your situation involves separation under one roof, children under 18, or disputed separation dates, seeking professional legal advice is recommended. CG Legal Group can provide guidance tailored to your specific circumstances and help you prepare the documentation needed for a successful divorce application.
