Information Centre · Family Law
Understanding Divorce and the 12-Month Separation Requirement
Australia's no-fault divorce system turns on a single requirement — that the parties have been separated for at least 12 months. Understanding how that period is measured can avoid unnecessary delays.
Key points
- Divorce in Australia is no-fault. Under section 48 of the Family Law Act 1975 (Cth), the sole ground is that the marriage has broken down irretrievably, established by the parties having lived separately and apart for a continuous period of not less than 12 months immediately preceding the application.
- Separation may occur while the parties continue to live under one roof (section 49(2)); the applicant must be able to prove the change in the marital relationship, ordinarily by evidence covering finances, sleeping arrangements, domestic tasks, social presentation and, where appropriate, an affidavit from an independent person.
- If the parties resume cohabitation for one period of not more than three months and then separate again, section 50 permits the periods before and after cohabitation to be added together, provided the total separation exceeds 12 months.
- If the parties have been married for less than two years at the date of filing, section 44(1B) generally requires a certificate from a family counsellor or family dispute resolution practitioner, or the Court's leave.
- A divorce order does not resolve property, parenting or spousal-maintenance matters; strict time limits then apply — an application for property settlement or spousal maintenance must generally be filed within 12 months of the divorce order taking effect under section 44(3), with leave required otherwise.
- Jurisdictional requirements under section 39(3) must be satisfied, including Australian citizenship, domicile in Australia, or ordinary residence in Australia for at least 12 months immediately before filing.
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For many people, divorce represents the formal end of a marriage. In practice, the legal process typically begins well before any application is filed with the court.
A key requirement under Australian family law is that the parties be separated for at least 12 months before applying for a divorce. Understanding this requirement can help avoid unnecessary delays and ensure that applications proceed as intended.
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 expects evidence of the changed nature of the relationship. The precise evidence required varies with the type of application and the circumstances and is determined in accordance with current Federal Circuit and Family Court of Australia guidance and any directions of the Court.
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
A common misconception is that divorce automatically resolves financial and parenting issues.
It does not.
Divorce proceedings 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.
Frequently Asked Questions
What is the 12-month separation rule?
Under section 48 of the Family Law Act 1975 (Cth), a divorce order may be made only where the Court is satisfied that the marriage has broken down irretrievably. The sole ground for that conclusion is that the parties have separated and have thereafter lived separately and apart for a continuous period of not less than 12 months immediately before the filing of the application. The 12-month period must be continuous, and it must exist at the time of filing.
Can we resume cohabitation without restarting the 12 months?
Section 50 of the Family Law Act 1975 (Cth) applies where, after separation, the parties resume cohabitation on one occasion and then separate again within a period of three months. In that case, the separation period before the resumed cohabitation and the separation period after may be aggregated; the period of resumed cohabitation is disregarded and does not count towards the 12 months. Only one such resumed cohabitation is permitted; a second period of resumed cohabitation, or a single resumption lasting three months or more, restarts the calculation.
What is separation under one roof?
Separation for the purposes of section 48 does not require the parties to live at different addresses. Section 49(2) recognises that parties may be separated while living under the same roof. Where the parties rely on separation under one roof for all or part of the 12 months, the Court expects evidence of the changed nature of the relationship. The precise evidence required varies with the application (sole or joint) and the circumstances, and is determined in accordance with current Federal Circuit and Family Court of Australia guidance and any directions of the Court.
Who can apply for a divorce in Australia?
The Court has jurisdiction under section 39 of the Family Law Act where at least one party is an Australian citizen, is domiciled in Australia, or is ordinarily resident in Australia and has been so resident for 12 months immediately before filing. An application may be made jointly by both parties or by one party as a sole applicant.
Do I need to attend the divorce hearing?
Attendance depends on the type of application and the circumstances. On a joint application the parties are ordinarily not required to attend. On a sole application, attendance may be required where the respondent has filed a Response indicating opposition, where the applicant has indicated a wish or objection about attendance, where an application is made for substituted service or dispensation with service, or where the Court otherwise directs. Where there is a child of the marriage under 18, section 55A applies and the Court must be satisfied that proper arrangements have been made for the child; whether that requires the applicant to attend depends on the material filed and any directions of the Court. Practice may vary between registries.
What are 'proper arrangements' for children under section 55A?
Where there is a child of the marriage under 18, section 55A prevents the divorce order from taking effect unless the Court is satisfied that proper arrangements have been made for the care, welfare and development of the child, or there are circumstances by reason of which the order should take effect notwithstanding that the Court is not satisfied. The Court considers evidence about living arrangements, time spent with each parent, education, health and financial support.
Can we divorce if we have been married less than two years?
Section 44(1B) of the Family Law Act requires parties who have been married for less than two years to file a certificate stating that they have considered reconciliation with the assistance of a specified counsellor or other person. Where a certificate cannot be filed for a stated reason, the Court's leave is required. The two-year period is counted from the date of the marriage.
How is a spouse who lives overseas served with the divorce application?
Service on a respondent outside Australia is governed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The requirements depend on the country and any applicable service convention. Where the ordinary methods of service are not practicable, an application for substituted service or dispensation with service may be made. Careful compliance with service requirements is important because a divorce made without proper service can be set aside.
When does the divorce become final?
Under section 55 of the Family Law Act 1975 (Cth), a divorce order made by the Court takes effect on the expiration of one month from the making of the order unless the Court orders that it takes effect at some other time. Official public guidance describes the divorce as final in most cases one month and one day after the hearing or order, reflecting the way in which the time is computed. Section 55A provides that the divorce order does not take effect unless the Court is satisfied that proper arrangements have been made for any child of the marriage under 18, or that there are circumstances by reason of which the order should take effect notwithstanding. A person is free to remarry once the divorce order has taken effect and a divorce order has been issued.
What time limits apply after divorce for property and maintenance applications?
An application for property settlement or spousal maintenance following divorce under sections 79 or 74 of the Family Law Act 1975 (Cth) must generally be filed within 12 months of the divorce order taking effect. An application filed outside that period requires the Court's leave under section 44(3), determined under the statutory conditions in the section, including section 44(4). De facto financial cause applications are subject to a separate regime — the standard two-year period from the end of the de facto relationship (and the consent alternative) is in section 44(5), and the Court's leave power after that period is in section 44(6).
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.
For a step-by-step guide to the divorce application itself, see our article on how to apply for divorce in Australia.
For how the property pool is identified, contributions considered and current and future circumstances assessed once separation has occurred, see our guide to property settlement after separation.
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.
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This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.