Understanding Divorce and the 12-Month Separation Requirement

Divorce in Australia

Australia operates under a no-fault divorce system. This means that the Court does not consider who was responsible for the breakdown of the marriage.

The sole ground for divorce is that the marriage has broken down irretrievably, demonstrated by a period of separation lasting at least 12 months immediately before the filing of the application.

The Court is not concerned with allegations of infidelity, unreasonable behaviour or other conduct that may have contributed to the relationship ending. Instead, the focus is on whether there is no reasonable likelihood of the parties resuming married life.

The 12-Month Separation Rule

Before a divorce application can be filed, the parties must have been separated for a continuous period of at least 12 months.

Separation occurs when one or both spouses decide that the marriage has ended and communicate that decision to the other party through words or conduct.

Importantly, separation does not necessarily require the parties to live in different homes.

Separation Under One Roof

Many separated couples continue living at the same address for financial, parenting or practical reasons.

The law recognises that parties may be separated despite remaining under the same roof. In these circumstances, additional evidence may be required to establish that the marital relationship ended despite the shared living arrangements.

Relevant factors may include:

• sleeping in separate bedrooms;
• maintaining separate finances;
• ceasing a sexual relationship;
• informing family and friends of the separation;
• dividing household responsibilities differently; and
• presenting to others as separated rather than as a couple.

Where separation under one roof forms part of the required 12-month period, the Court will generally require affidavit evidence explaining the circumstances.

Joint and Sole Divorce Applications

There are two ways to apply for divorce.

Joint Application

A joint application is filed by both spouses together.

Joint applications are often simpler because there is no requirement for one party to formally serve court documents on the other.

Sole Application

A sole application is filed by one spouse.

In these cases, the applicant must arrange for the application to be formally served on the other party in accordance with the Court's rules.

Where a spouse cannot be located or service presents difficulties, additional court procedures may be required.

Do You Need to Attend Court?

Many divorce applications proceed without the parties needing to attend court.

Attendance may be required in certain circumstances, particularly where:

• the application is made by one party only;
• there are children of the marriage under 18 years of age; or
• questions arise regarding service or jurisdiction.

The Court must be satisfied that appropriate arrangements have been made for any children under 18 before granting a divorce.

Divorce and Property Settlements Are Different Matters

One of the most common misconceptions is that divorce automatically resolves financial and parenting issues.

It does not.

Divorce proceedings simply bring the legal marriage to an end. Matters involving:

• property settlements;
• division of assets and liabilities;
• spousal maintenance;
• parenting arrangements; and
• child support

are separate legal issues that may need to be addressed independently.

In many cases, parties finalise property and parenting arrangements before applying for divorce.

Applying for Divorce When a Spouse Lives Overseas

It is still possible to apply for divorce in Australia where one spouse resides overseas.

The Court may have jurisdiction if either party:

• regards Australia as their permanent home and intends to live here indefinitely;
• is an Australian citizen by birth, descent or grant of citizenship; or
• ordinarily resides in Australia and has done so for at least 12 months immediately before filing the application.

Additional procedural requirements may apply where documents need to be served outside Australia.

Marriages of Less Than Two Years

Special rules apply where the parties have been married for less than two years.

Generally, the parties must attend counselling with a view to reconciliation before filing for divorce. The counsellor then provides a certificate confirming attendance.

Exceptions may be available where family violence has occurred, one party cannot be located, or other exceptional circumstances exist.

When Does a Divorce Become Final?

After the Court grants a divorce order, the divorce does not take effect immediately.

In most cases, the divorce becomes final one month and one day after the order is made.

Only after the divorce becomes final are the parties legally divorced and free to remarry.

Important Time Limits After Divorce

Parties should be aware that strict time limits apply following divorce.

Applications for property settlement or spousal maintenance must generally be commenced within 12 months of the divorce becoming final.

Failure to act within this period can significantly complicate matters and may require special permission from the Court.

Obtaining Legal Advice

While many divorce applications are relatively straightforward, complications can arise where there are children, international issues, property disputes or questions regarding separation under one roof.

Obtaining legal advice early can help ensure that the correct procedures are followed and that important rights and deadlines are protected.

At Parke Lawyers, our family law team assists clients with divorce applications, property settlements, parenting matters and related family law issues throughout Victoria. We provide practical advice and clear guidance to help clients move through the legal process with confidence and certainty.