Separation vs divorce in Australia: the difference, and how long you must be separated before you can divorce
In Australia you must be separated for at least 12 months before a court will grant you a divorce. You can apply once the 12 months are up, not before. That one rule is the main difference between the two: separation is the end of the relationship in practice, and divorce is a court order that ends a marriage.
You can be separated without being divorced. De facto couples separate but don't divorce at all. And a divorce settles nothing about property, parenting or child support, which is where most of the expensive mistakes happen.
This guide covers how the 12 months works, what counts as separated, and what each step triggers. It's general information, not legal advice.
How long do you have to be separated before you can divorce?
Twelve months. The court needs to be satisfied the marriage has broken down with no reasonable likelihood of getting back together, and 12 months of separation is the evidence for that. There's no way to shorten it, even if you both agree the marriage is over.
Put your separation date into the divorce date calculator to see your earliest date to apply.
You can't be refused a divorce because of who ended the relationship or why. Australia is a no-fault system, so the reasons for the breakdown aren't what the court is looking at.
If you've been married less than two years, there's one extra step: you need a counselling certificate before you can apply, or a court affidavit explaining why counselling wasn't possible. The Family Relationships Advice Line (1800 050 321) can arrange it. The 12 months still applies.
When does the 12 months start?
From your separation date. There's no form to file and no government office that records it. The date is established by what actually happened: who moved out and when, when you stopped acting as a couple, when you told family and friends, when you separated your finances.
One person deciding the relationship is over, and acting on it, is enough. Your spouse doesn't have to agree, but they do need to know you consider the marriage over.
Write your separation date down early. It sets the clock for the divorce, for property settlement time limits and for child support, and it's much easier to prove if you recorded it at the time.
Can you be separated while living in the same house?
Yes. This is called being "separated under one roof", and it counts toward the 12 months. But you'll need to prove it to the court, usually with an affidavit and supporting statements from other people.
The court looks at whether you've actually stopped functioning as a couple: sleeping apart, no longer sharing meals or household duties as a couple, separate finances, and whether friends and family know you're separated. If this is you, there's a full guide: separated under one roof: the legal and practical reality.
What if you get back together for a while?
A short reconciliation doesn't necessarily reset the clock. If you resume living together once, for up to three months, and it doesn't work, the time you were separated before and after can be added together to make up the 12 months. The time you were back together doesn't count. If you got back together for longer than three months, the 12 months generally restarts from the most recent separation.
If this is you, get advice on the exact dates before you apply. A wrong separation date is one of the easier ways to have an application knocked back.
Does your spouse have to agree to the divorce?
No. You can apply on your own (a sole application) or together (a joint application). With a sole application, your spouse has to be formally served with the papers, but they can't block the divorce by refusing to agree or by ignoring it.
You apply online through the Commonwealth Courts Portal and pay a filing fee. The fee changes each year and a reduced fee is available for people on certain concession cards or in financial hardship, so check the court's current fees before you budget for it.
What if you have children under 18?
The court has to be satisfied that proper arrangements are in place for them before it grants the divorce. Whether you need to attend a hearing depends on whether you apply alone or jointly and on the circumstances, so follow the court's instructions when you file. You don't need a finalised parenting plan or court orders to get divorced, but you do need to show the children are being cared for.
The divorce itself doesn't decide who the children live with. That's a separate process, covered in parenting plans: what to include and what breaks them.
When is the divorce actually final?
One month and one day after the court grants the divorce order. You're not divorced on the day of the hearing, and you can't remarry until the order is final.
Allow several months in total from filing to the divorce becoming final. The exact time varies with the court's workload and with whether the other party is served promptly.
Separation vs divorce at a glance
What it is. Separation is the practical end of the relationship. Divorce is a court order that legally ends a marriage.
Who it applies to. Separation applies to married and de facto couples. Divorce applies to married couples only. There's no divorce for a de facto relationship.
Waiting period. None to separate. Twelve months of separation before you can apply for a divorce.
Paperwork. None to separate. A court application, a filing fee and, in some cases, a hearing to divorce.
What it settles. Separation settles nothing by itself. A divorce ends the marriage only. It doesn't divide property, assess child support or set parenting arrangements.
The part that catches people out: divorce doesn't settle the money
You can be divorced with an unresolved property settlement, and you can have a complete property and parenting agreement while still legally married. They run on separate timelines.
For married couples, the key deadline is this: once the divorce order is final, you have 12 months to apply to the court for a property settlement. After that you need the court's permission to bring a claim, and that isn't guaranteed.
If your property isn't sorted by the time the divorce goes through, start straight away. The process is covered in how property settlement works in Australia.
What about de facto couples?
There's no divorce and no 12-month waiting period. Instead, you generally have two years from the date of separation to apply to the court for a property settlement (Western Australia has its own state laws for de facto couples). There's no divorce order to create a second deadline, so the clock runs from separation.
Two years goes faster than it sounds with kids, work and everything else going on. Know your date.
The timeline in order
Separation date. The 12-month clock starts. For de facto couples, the two-year property deadline starts. Child support can be assessed from here and parenting arrangements should be put in place, informally at first.
12 months later. You can apply for a divorce (married couples only).
A few months after that. The court grants the divorce order, which becomes final one month and one day later.
12 months after the divorce is final. The property settlement deadline for married couples.
Two years after separation. The property settlement deadline for de facto couples (check the rule if you're in Western Australia).
Put these dates somewhere you'll see them. Atlas Records has a key dates section for the separation date, the divorce application, the order and your property deadline.
What to do now
Write down your separation date and the evidence for it. Don't wait for the 12 months to pass before you deal with property and parenting. Those matter more than the divorce itself, and neither needs a divorce to start.
Tell Services Australia about the change in your relationship status. If you receive Centrelink payments, you generally need to report changes in circumstances within 14 days. The first 30 days checklist covers the rest of the early admin.
If you haven't made the decision yet, read The Waiting Room.
Common questions
Can I get a divorce in less than 12 months?
No. The 12-month separation requirement applies to every married couple, including those who both want the divorce. The only added step for some people is a counselling certificate if the marriage is under two years old.
Do I need a lawyer to get divorced?
Not for the application. Most straightforward divorces are done directly through the court's online portal. A lawyer is worth it for the property and parenting side, particularly before the divorce becomes final and the 12-month property deadline starts.
Does it matter who ended the relationship?
No. Fault isn't considered for the divorce.
Is a legal separation a thing in Australia?
No formal "legal separation" status exists. You're separated when the relationship has ended in practice, with or without any paperwork. The paperwork that matters is for the things that follow: property, parenting and child support.
Do I need to live in separate houses to count as separated?
No, but you'll need evidence if you've stayed under one roof. See above.
Sources and further reading
- Federal Circuit and Family Court of Australia, Divorce: I want to apply
- Federal Circuit and Family Court of Australia, Family law fees
- Victoria Legal Aid, Divorce
- Family Relationships Advice Line: 1800 050 321, familyrelationships.gov.au
- Commonwealth Courts Portal: comcourts.gov.au
- Family Law Act 1975 (Cth), the governing legislation
- Services Australia, changes in your circumstances