Divorce and the 12-Month Separation Requirement

The only ground for divorce

Australia has no-fault divorce. Section 48(1) of the Family Law Act 1975 (Cth) provides that an application for a divorce order must be based on the ground that the marriage has broken down irretrievably. Why it broke down is not before the Court. Conduct, blame and even agreement between the parties are beside the point.

Section 48(2) then converts that ground into a single factual test. The ground is held to be established, and the divorce order must be made, if and only if the Court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing of the application. Section 48(3) adds one qualification: the order must not be made if the Court is satisfied there is a reasonable likelihood of cohabitation being resumed.

Three consequences follow for the 12-month requirement (sections 55 and 55A deal separately with when an order takes effect):

• the breakdown must be irretrievable — hence the requirement that there be no reasonable likelihood of cohabitation resuming;
• the 12 months must be continuous, subject only to the reconciliation rule in section 50 discussed below; and
• the 12 months must be complete at the date of filing, not at the date of the hearing. Section 48 must be satisfied at the date of filing, and a later hearing date cannot cure an application filed early.

One point of history is worth stating plainly because it still circulates. The current Act does not impose a separate counselling certificate or leave requirement merely because the marriage lasted less than two years. The ordinary section 48 separation requirement applies to short marriages in exactly the same way as to long ones.

Identifying the date of separation

Separation is not a legal act. It is a factual state of affairs that the Court finds on evidence. It is generally understood to involve the ending of the marital relationship — a decision by at least one party that the marriage is over, communicated to the other, and acted on.

Section 49(1) provides that the parties may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties. Separation is unilateral. One spouse's refusal to accept that the marriage is over does not prevent separation, and does not prevent a divorce.

The communication of that decision may be express or it may be inferred from conduct — moving out, dividing finances, telling family, ceasing to present as a couple. The Act does not prescribe a formula, and there is no requirement for a letter, a text message or any particular form of words. What matters is that the evidence, taken as a whole, supports a finding that the marital relationship ended on or about the date nominated and did not resume.

The practical consequence is that the separation date should be chosen with some care. It is sworn to. It drives the earliest lawful filing date, and it can later be relevant in property proceedings when contributions after separation are assessed.

Separation under one roof

Parties often remain in the same home after separating — because of a mortgage, a rental market, children, illness or simple practicality. That does not prevent them from being separated.

Section 49(2) puts it beyond argument: the parties may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence, or that either party has rendered some household services to the other. Cooking a meal, doing a load of washing or sharing a bill does not, by itself, prevent a finding of separation.

What changes is the evidence. Where the parties lived under one roof during any part of the 12 months immediately preceding filing, affidavit evidence must be filed in support of the application. Under current Court procedure:

• on a sole application, the applicant must file an affidavit, and should also file an affidavit from an independent person such as a family member, friend or neighbour; and
• on a joint application, each party must file a separate affidavit, and if only one party is able to do so an affidavit from an independent person should also be filed.

The independent affidavit should contain as much as that person genuinely knows about the separation. It is not improved by being made to mirror the applicant's account.

The affidavit evidence is directed at showing a change in the marriage, whether gradual or sudden. The matters the Court's guidance identifies as relevant include:

• any change in sleeping arrangements;
• any reduction in shared activities or family outings;
• any decline in the performance of household duties for each other;
• the division of finances, such as the separation of bank accounts;
• any other matters showing the marriage has broken down, such as having told family and friends of the separation;
• why the parties continued to live in the same home and what intention, if any, there is of changing that; and
• the living arrangements made for any child of the marriage under 18 during that time.

Where a party receives a government benefit, the affidavit should also identify which departments — such as Centrelink or Services Australia — have been told of the separation, and attach any correspondence received about it.

Two cautions. These are matters to be addressed where they apply, not a checklist every one of which must be satisfied; couples separate in different ways and an affidavit that recites the list mechanically is less persuasive than one that explains what actually happened. And the absence or presence of a sexual relationship is not decisive by itself. It is one circumstance among many.

Short periods of reconciliation and section 50

Some separated couples try again. Section 50 deals with the effect of that attempt, and it is an aggregation rule rather than a general forgiveness provision. It applies where, after the parties separated:

• they resumed cohabitation on one occasion;
• within a period of three months after that resumption they again separated; and
• they thereafter lived separately and apart up to the date of filing the application.

Where all three conditions are met, the periods of living separately and apart before and after the cohabitation may be aggregated as if they were one continuous period. The period of cohabitation itself is not counted as part of the period of living separately and apart — so a reconciliation of six weeks pushes the earliest filing date out by six weeks, it does not simply vanish. Section 50(2) adds that a period of cohabitation is deemed to have continued through any interruption that the Court considers was not substantial.

If the conditions are not met — there was more than one resumption of cohabitation, or a single resumption that lasted three months or longer, or the parties did not remain separated through to filing — then section 50 does not apply and the earlier and later periods cannot be aggregated. In that case the 12 months is measured from the later separation. It is more accurate to think of section 50 as a narrow permission to add two periods together than as a rule about the clock being reset.

Disputes about the separation date

Disputes about the date arise in two quite different settings, and they should not be confused.

In the divorce itself, the respondent may file a Response to Divorce if they wish to oppose the divorce order or clarify something in the application. Where a Response is filed, it must be filed within 28 days after service if the respondent was served in Australia, or 42 days if served overseas. A contested Response changes the character of the hearing, which is dealt with below.

Far more often, the separation date is fought about not because anyone opposes the divorce but because of what turns on it elsewhere — post-separation contributions, the treatment of an asset acquired after the parties parted, or a de facto claim said to have begun afterwards. Those disputes are decided in the financial proceedings, on their own evidence, and the date recorded on a divorce application is not conclusive of them. It is, however, a sworn statement that will be put to you if it is inconsistent with the case you later run.

Evidence and record keeping

Divorce evidence is retrospective, and the material that proves a separation is usually created for entirely unrelated reasons at the time. It is worth preserving early:

• messages, emails or letters in which the separation was communicated or acknowledged;
• records showing the separation of finances — the opening or closing of accounts, the removal of an authority, changes to direct debits;
• notifications to Services Australia, Centrelink, superannuation funds, insurers, banks and employers, and any correspondence received in reply;
• lease documents, removalist invoices, utility connections or change-of-address records;
• the names and contact details of people who observed the change — these are the potential independent deponents; and
• a short contemporaneous note of the date and circumstances of separation, made while the detail is fresh.

None of this is required to be filed in a straightforward application. It matters when the separation is contested, when the parties lived under one roof, or when the date becomes financially significant years later.

Jurisdiction and proof of marriage

Section 39(3) permits divorce proceedings to be instituted if, at the date the application is filed, either party to the marriage:

• is an Australian citizen;
• is domiciled in Australia — in the Court's plain-English formulation, regards Australia as home and intends to live here indefinitely; or
• is ordinarily resident in Australia and has been so resident for one year immediately preceding that date.

Only one of the three needs to be satisfied, and it need only be satisfied by one of the parties, so a spouse living overseas is not an obstacle to jurisdiction.

A divorce proceeding is commenced in the Federal Circuit and Family Court of Australia (Division 2). It cannot be commenced in Division 1.

A copy of the marriage certificate must be filed with the application. If the certificate is not in English, a translation must be filed, annexed to an Affidavit — Translation of Marriage Certificate completed by the translator, verifying the translation and setting out their qualifications. If the applicant and respondent were both born overseas, additional evidence of jurisdiction is required — proof of citizenship such as a citizenship certificate or Australian passport, or evidence of ordinary residence such as a VEVO status check or bank statements.

Sole and joint applications, and service

An application for divorce may be made jointly by both parties or solely by one. The difference that matters for present purposes is service.

A joint application does not need to be served. A sole application must be served on the respondent in accordance with the Family Law Rules, together with the Marriage, Families and Separation brochure and an Acknowledgment of Service (Divorce). The applicant cannot serve the documents personally; service must be effected by another adult, who may be a friend, a family member or a professional process server.

The current minimum service periods are at least 28 days before the hearing if the spouse is in Australia, and at least 42 days before the hearing if the spouse is overseas. These are distinct from the listing rule in the divorce practice direction, under which the hearing date fixed must be at least 42 days after filing where the respondent is in Australia and at least 56 days after filing where the respondent is outside Australia.

Where the respondent cannot be served by hand or by post, the applicant may apply by Application in a Proceeding, supported by an affidavit, for an order permitting service by another means (substituted service) or dispensing with service altogether. These applications are not granted as a matter of course; the Court will want to see what steps were actually taken to locate and serve the respondent.

Service outside Australia depends on the country. Where the country is a party to the Hague Service Convention, service may be effected by applying to serve under the Convention in accordance with the Family Law Regulations 2024 (Cth). Where it is not, advice should be obtained about substituted service or dispensation.

The forms, portal steps and filing sequence are set out in our step-by-step guide to applying for a divorce.

Attendance at the hearing

Most divorce hearings occur in the absence of the parties. Neither the fact that the application is a sole application, nor the existence of a child of the marriage under 18, of itself requires the applicant to attend.

Under current national guidance, attendance is generally required where:

• the party indicated in the application that they wish to attend;
• the respondent requests to attend;
• a Response to Divorce is filed that contests the divorce or raises an issue about the Court's jurisdiction or power to make the order;
• an Application in a Proceeding is filed seeking substituted service or dispensation of service, unless attendance is excused or the Court directs otherwise; or
• the Court directs a party to attend.

Where a Response to Divorce is filed, the hearing must proceed in open court and each party must attend or be represented by a lawyer — unless the Response does not contest the divorce and does not raise any issue about the Court's jurisdiction or power to make the order. If a respondent who did not previously request to attend later asks to attend, the applicant is still not obliged to attend if they do not wish to.

The Court may in any case direct that a party attend, or adjourn the application and direct that further evidence be filed.

Divorce hearings before a Registrar are conducted electronically. Where attendance is required, the party appears by web conference using details available through the Commonwealth Courts Portal and on the daily court list from 4pm the day before, rather than attending a registry in person.

Children and section 55A

It is not quite right to say that arrangements for children must be established before a divorce is granted. Section 55A operates on the taking effect of the order, not on the making of it: a divorce order does not take effect unless the Court has, by order, declared that it is satisfied either:

• that there are no children of the marriage under 18 years of age; or
• that the only children of the marriage under 18 are those specified in the order and that either proper arrangements in all the circumstances have been made for their care, welfare and development, or there are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that such arrangements have been made.

That second limb matters. A parent who genuinely cannot describe the arrangements — because the other parent has the children and will not communicate, for example — is not permanently barred from a divorce; they need to explain the position honestly.

"Child of the marriage" is broader than biological children. Under section 55A(3) a child is a child of the marriage — including an ex-nuptial child of either party, a child adopted by either of them, or a child who is not a child of either of them — if the child was treated by both parties to the marriage as a child of their family at the relevant time, which section 55A(4) fixes as immediately before the parties last separated.

The application asks for detail about how the children spend time and communicate with each parent, their education, health and financial support, and why the arrangements are as they are. If that information is insufficient, the Court may adjourn the application for more, and under section 55A(2) it may adjourn until a report has been obtained from a family consultant.

None of this decides parenting. A divorce order does not determine who a child lives with or spends time with, and the section 55A declaration is not a finding that the arrangements are in the child's best interests for the purposes of a parenting dispute. Those issues are dealt with under Part VII and are covered in our guide to parenting arrangements after separation.

When the divorce order takes effect

Under section 55(1), a divorce order takes effect by force of that section at the expiration of a period of one month from the making of the order, or from the making of an order under section 55A, whichever is the later. The Court's public guidance expresses the same thing in practical terms: in most cases the divorce is finalised one month and one day after the hearing, reflecting how the month is computed, and the order can only be downloaded from the Commonwealth Courts Portal the day after it is finalised.

The period is not immovable. Section 55(2) allows the court of first instance, or a court in which an appeal has been instituted, to extend the period having regard to the possibility of an appeal, or to reduce it if satisfied that there are special circumstances justifying that course. Section 55(3) deals with the effect of an appeal, and section 55(4) provides that the order does not take effect if either party has died.

The practical warning is straightforward: a divorce being granted at the hearing does not mean the parties are divorced. A person must not remarry until the divorce order has taken effect. Nor is it safe to assume the order will be made at the first hearing — if a requirement has not been met, the Court will explain what further steps are needed and the matter is dealt with on a later date. A wedding date should not be fixed until the divorce order can actually be produced.

What a divorce does not decide

A divorce order ends the marriage. It does not divide property, set maintenance, decide parenting arrangements or fix child support, and it does not disturb orders already made. Existing parenting orders and existing financial orders continue according to their terms.

Four consequences deserve attention.

The 12-month financial window. Once a divorce order takes effect, proceedings for property settlement or spousal maintenance must generally be instituted within 12 months. After that, section 44(3) permits proceedings to be instituted only with the leave of the court, or with the consent of both parties to the marriage. The consent route exists as an alternative to leave, and it is subject to section 44(3AA), under which the court may dismiss proceedings if satisfied the consent was obtained by fraud, duress or unconscionable conduct. Section 44(4) sets the threshold for leave: the court may grant it only where it is satisfied that hardship would be caused to a party to the marriage or a child if leave were not granted, and, where the proceedings are for maintenance, only where the additional statutory condition about the applicant's circumstances at the end of the 12 months is met. Our guide to time limits for property settlement deals with this in detail, including the separate regime that applies to de facto relationships.

Remarriage. Do not set a wedding date until the divorce order has taken effect and can be downloaded.

Wills and estate planning. Divorce can affect testamentary provisions in favour of a former spouse, while separation alone generally does not. A will made during the marriage should be reviewed at separation rather than left until the divorce, and enduring powers of attorney, superannuation nominations and jointly held property should be reviewed at the same time.

The other proceedings continue. Property, maintenance and parenting matters run on their own tracks. For the substantive tests, see our guides to property settlement after separation and spousal maintenance in Australia.

Frequently asked questions

Sources and further reading

• Family Law Act 1975 (Cth) — current compilation, Federal Register of Legislation (see sections 39, 44, 48, 49, 50, 55 and 55A).
• Divorce — overview — Federal Circuit and Family Court of Australia.
• Divorce hearing — Federal Circuit and Family Court of Australia.
• Separated but living under one roof — Federal Circuit and Family Court of Australia fact sheet.
• Family Law Practice Direction: Divorce proceedings (FAM-DIVORCE) — Federal Circuit and Family Court of Australia.
• Serving a divorce application — Federal Circuit and Family Court of Australia.
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 — Federal Register of Legislation.

At Parke Lawyers, our family law team assists clients throughout Victoria with divorce applications, disputed separation dates, separation under one roof, property settlements and parenting matters. Where the separation history is complicated, verify the separation date and the supporting evidence before filing.