How Long After Separation Can You Apply for Divorce in Australia?
After separating from your spouse, you may feel ready to formally bring your marriage to an end.
However, in Australia, you cannot apply for divorce immediately.
You must generally be separated for at least 12 months and one day before you can file a divorce application.
Although the rule sounds straightforward, questions can arise when couples continue living together, briefly reconcile or disagree about when their separation began.
This guide explains the waiting period and what may affect when you can apply.
For advice about separation, divorce or related financial matters, explore Brite Legal’s family law services.
How long do you need to be separated before applying for divorce?
In Australia, you must be separated from your spouse for at least 12 months and one day before applying for divorce.
The separation period is used to show that the marriage has broken down irretrievably and that there is no reasonable likelihood of the relationship resuming.
Australia has a no-fault divorce system. This means you do not need to prove that either spouse was responsible for the marriage ending.
You also do not need your former spouse’s agreement to separate or apply for divorce once the required waiting period has passed.
When does the separation period begin?
Your separation period generally begins when:
one or both spouses decide the relationship has ended;
that decision is communicated to the other spouse; and
the couple begins living separately, either in different homes or separately within the same home.
It is helpful to make a record of the date you separated. This may include saving a message or email, noting when family members were told or keeping records of changes to your living and financial arrangements.
If you and your former spouse disagree about the separation date, further evidence may be needed.
Can you be separated while living in the same house?
Yes. You do not necessarily need to move into different homes for the separation period to begin.
When a couple ends their relationship but continues living at the same address, this is commonly known as separation under one roof.
This may happen because of financial pressures, housing availability, children or other practical considerations.
When applying for divorce, you may need to provide additional evidence showing that the relationship had ended even though you continued sharing a home. This could include changes to your:
sleeping arrangements;
finances;
household responsibilities;
social activities; and
presentation to friends and family.
We explain this in more detail in our guide to navigating separation while living under the same roof.
What happens if you briefly reconcile?
A short attempt at reconciliation does not always mean you must restart the entire 12-month separation period.
If you resume the relationship for a period, or several periods, totalling less than three months, you may be able to add together the periods of separation before and after the reconciliation.
The time spent back together does not count towards the required 12 months.
For example, if you were separated for six months, reconciled for one month and then separated for another six months, the two periods of separation may be combined.
However, if you reconcile for three months or longer, the separation period will generally begin again from the later separation date.
Legal advice can be helpful where there have been several separation and reconciliation periods.
Can you deal with other family law matters before applying for divorce?
Yes. The 12-month-and-one-day waiting period applies to divorce, but it does not mean you must wait before dealing with every other part of your separation.
You may be able to address matters such as:
parenting arrangements;
child support;
property settlement;
superannuation;
spousal maintenance; and
financial agreements or consent orders
before applying for divorce.
In many cases, separating couples begin working through these matters well before they become eligible to file their divorce application.
Does applying for divorce finalise your property settlement?
No. Divorce and property settlement are separate legal processes.
A divorce legally ends the marriage, but it does not automatically determine what happens to the family home, savings, debts, superannuation or other assets.
You also do not need to wait until you are divorced before beginning a property settlement.
However, once a divorce becomes final, married couples generally have 12 months to commence Court proceedings for property settlement or spousal maintenance. Different time limits apply to de facto relationships.
For a more detailed explanation, read Does Divorce Deal With Property Settlement? What You Need to Know.
How do you apply for divorce?
Once the required separation period has passed, you can generally apply for divorce online through the Commonwealth Courts Portal.
You may make:
a joint application with your former spouse; or
a sole application by yourself.
A sole application usually needs to be formally served on the other spouse.
Additional documents may be required if you were separated under one roof, cannot locate your former spouse or there is disagreement about the separation date.
Our step-by-step guide, How to Get Divorced in South Australia, explains the application process in more detail.
When does the divorce become final?
A divorce does not usually become final on the day it is granted.
The divorce order generally takes effect one month and one day after the Court grants it, unless the Court orders otherwise.
You should wait until the divorce order has taken effect before making plans to remarry.
Taking the next step after separation
You generally need to be separated for 12 months and one day before applying for divorce in Australia.
During that period, you can still obtain legal advice and begin dealing with parenting, property and financial matters. You do not need to wait for your divorce before taking steps to create greater certainty about your future.
Brite Legal assists families across South Australia with separation, divorce, parenting and property settlement matters.
Book an appointment with our family law team to discuss the next steps for your circumstances.
This article provides general information only and is not a substitute for legal advice tailored to your circumstances.
Written by Brite Legal
Reviewed by Justine Walker, Solicitor
Justine is a solicitor at Brite Legal, assisting clients with family law, property settlement and estate planning across South Australia.
This article has been legally reviewed to help ensure the information is accurate and up to date at the time of publication.