Divorce and Separation Period

Divorce marks the formal end of a marriage in Australia. A critical requirement for obtaining a divorce is demonstrating that the marriage has irretrievably broken down, evidenced by a minimum 12-month separation period. This article looks at the legal framework surrounding divorce and separation in Australia, and the requirements for proving separation.

The legislative framework for divorce

Australia follows a no-fault divorce system, meaning that the courts do not consider why the marriage broke down. The sole ground for divorce under the Family Law Act 1975 is the irretrievable breakdown of the marriage, demonstrated by at least 12 months of separation.

To apply for a divorce in Australia, at least one spouse must be an Australian citizen, be domiciled in Australia, or have been ordinarily resident in Australia for at least 12 months before filing.

The separation period requirement

The separation period is a cornerstone of Australian divorce law, designed to ensure that a couple do not act impulsively and that there is no reasonable prospect that the couple can reconcile. Several aspects of the separation period merit detailed consideration.

What constitutes separation?

Separation is characterised by two elements:

• the couple is living apart or ceasing to cohabitate as a couple, and
• the separation must be predicated on the fact that at least one spouse intends to terminate the relationship, and clearly and unambiguously communicated this intention to the other party.

As such, a period of separation where the parties agree to live separately but maintain a relationship does not contribute to the required 12 months of separation.

Separation under the same roof

In some cases, spouses may be separated but remain living in the same home. The scenario of “separation under the same roof” usually occurs because of financial constraints or parenting commitments. The parties are aware that the relationship has broken down and that they are no longer cohabitating as spouses, but for practical reasons they cannot demonstrate separate residences.

In these cases, to prove separation under the same roof, applicants must provide additional evidence to prove they are:

• sleeping in separate rooms,
• not sharing domestic arrangements (such as shared finances), and
• having limited social interaction as a couple.

Spouses can provide evidence of separation under the same roof through affidavits from third parties (such as family members or friends) who can corroborate the couple’s claim of genuine separation.

12 month separation rule

Because Australian law requires spouses to live separately for at least 12 months, the date of first separation is significant. Disputes may arise if one party claims that separation occurred on a different date or denies that separation took place at all.

It is not unusual for couples to try and reconcile during the separation period. However, if a couple reconcile for less than three months and then separate again, the two periods of separation can be combined to meet the 12 month requirements. For example, if a couple separates for six months, reconciles for two months, and separates again for another six months, then they have fulfilled the total separation requirement. On the other hand, if the reconciliation exceeds three months, the separation clock resets, and the couple must begin the 12-month period anew.

Evidence of separation

Applicants must provide evidence to the court demonstrating that they have been separated for at least 12 months. This may include:

• statements in the Application for Divorce form,
• supporting affidavits detailing the circumstances of the separation, and
• evidence of separate financial arrangements (such as separate bank accounts and utility bills).

As noted above, for couples who are separated under the same roof, the court requires additional documentation to substantiate the claim.

Divorce for short marriages

For marriages of less than two years duration, Australian law imposes an additional requirement: couples must attend family counselling to explore reconciliation before applying for divorce. A certificate from a counsellor confirming attendance is required unless exceptional circumstances apply, such as family violence.

Divorce vs property and parenting matters

It is essential to note that divorce addresses only the legal dissolution of the marriage. Issues related to property settlementand parenting arrangements are dealt with separately and are not contingent on finalising the divorce. However, once a divorce is granted, the parties only have 12 months to initiate property settlement proceedings. Applying for property orders after this period has elapsed will require special permission from the court to proceed.

The separation period is a crucial requirement to divorce in Australia, reflecting the legal and emotional gravity of ending a marriage. By requiring a 12-month separation period, the law aims to ensure that couples have adequate time to properly consider reconciliation. Go To Court Lawyers can help with legal advice about the requirements to divorce in Australia, including the separation period.