Under Australian family law, couples must be separated for at least 12 months before they can apply for a divorce.
This 12-month separation period, established under section 48(2)–(3) of the Family Law Act 1975 (Cth), is a mandatory legal threshold that applies nationwide — whether the parties live apart or remain “under the same roof.”
During this period, at least one spouse must intend to end the marriage permanently, and the court must be satisfied that there is no reasonable likelihood of reconciliation.
In practical terms, this means the earliest a divorce can be finalised is usually around 13 to 16 months from the date of separation — accounting for the 12-month legal requirement plus several additional months for court filing, hearing, and order finalisation.
This article explains the legal definition of separation, what evidence the court requires, and how factors like short reconciliations, shared housing, and children can affect the timeline.
The Legal Basis for the 12-Month Separation
Under Australian law, divorce is granted only on one ground — that the marriage has broken down irretrievably. To prove this, section 48(2) requires evidence of continuous separation for a period of not less than 12 months immediately preceding the filing of the application.
If the couple resumes the relationship for three months or more, the statutory clock resets. Shorter reconciliations, however, do not automatically invalidate the prior period, provided the total separation time adds up to 12 months or more.
This provision gives couples the opportunity to attempt reconciliation without losing all prior elapsed time — reflecting the law’s preference for genuine, considered decisions over procedural rigidity.
What Counts as “Separation”?
Under Australian law, you are considered legally separated when at least one spouse decides to end the marriage and clearly communicates that decision to the other person.
From that point onward, the relationship must functionally end — meaning the parties live independent lives, even if they remain in the same home.
Separation does not require a formal document or court approval. What matters is the intention to permanently end the relationship and the conduct that supports it. The court looks at practical indicators such as whether:
- you sleep in separate bedrooms;
- you maintain separate finances;
- you no longer present socially as a couple; and
- you perform household and parenting duties independently.
Importantly, you can still be “separated under one roof” — living in the same house but no longer in a marital relationship. In these cases, the Federal Circuit and Family Court of Australia requires affidavit evidence from both parties (and sometimes a third party) confirming that the marriage ended in substance, not just in words.
In short, separation occurs when the emotional, financial, and domestic bonds of marriage have ceased, and at least one spouse intends for that state to be permanent.
When You Can Apply for Divorce?
You can apply for divorce in Australia only after being separated for at least 12 months and one day.
This rule, set out under section 48(2)–(3) of the Family Law Act 1975 (Cth), applies nationwide. The Federal Circuit and Family Court of Australia will not accept an application unless the separation requirement is fully satisfied and there is no reasonable likelihood of reconciliation.
To be eligible, at least one spouse must also meet the Court’s jurisdictional criteria, meaning they must:
- regard Australia as their permanent home, or
- be an Australian citizen (by birth, descent, or grant), or
- have lived in Australia for at least 12 months immediately before filing.
If the marriage has lasted less than two years, an additional step applies: the applicant must attend marriage counselling or seek permission from the Court to proceed without it (s 44(1B)–(1C)).
Applications can be made either:
- Jointly – both spouses apply together (usually faster, as no service is required), or
- Solely – one spouse applies alone (requiring formal service of documents on the other party).
If you are unsure whether your situation qualifies or how to prepare your documentation, find a family lawyer for professional guidance before filing — especially if your marriage is under two years or involves cross-jurisdictional elements.
Filing Too Early
If an application is lodged before the 12-month requirement is met, the Court will not grant the divorce. Instead, the matter may be adjourned until the minimum period has elapsed or dismissed entirely.
It is therefore essential to calculate the date of separation precisely, supported by evidence such as:
- written communication confirming separation (e.g., email or text acknowledgment),
- change of residential address,
- separate financial arrangements, or
- witness statements from friends or relatives.
Failing to establish a clear separation date often causes avoidable delays — one of the most common procedural pitfalls in family-law practice.
Practical Realities During the Separation Period
While the legal framework for divorce in Australia appears straightforward, the realities of separation are often more complex. Many couples remain in shared homes due to financial, parenting, or emotional reasons, while others experience brief reconciliations that blur the legal timeline.
Understanding how the 12-month separation rule applies in these practical situations is essential to avoid delays or rejection when filing for divorce.
Living Together While Separated
Many couples remain under one roof for financial or parenting reasons. In such cases, the Court will look for objective evidence that the relationship ceased in substance — for example:
- sleeping in separate bedrooms;
- maintaining independent bank accounts;
- ceasing shared social activities; and
- communicating as co-parents rather than partners.
Where the evidence is ambiguous, the Court may request further affidavits or refuse to accept the claimed separation date.
Short Reconciliations and Their Impact
A brief reconciliation of less than three months will not necessarily invalidate the earlier separation period.
However, if the couple resumes cohabitation for more than three months, the law treats that period as a genuine resumption of the marriage, and the separation must begin again from the new date of final separation.
Documentation and Evidence
Applicants should keep clear records throughout the separation period, particularly if living under the same roof.
Supporting affidavits, financial statements, and witness confirmation all help demonstrate that the marriage genuinely ended more than 12 months before filing.
Frequently Asked Questions
Although the statutory framework appears simple — twelve months of separation and proof of breakdown — the application of these principles varies across real-life circumstances.
Below are the most frequently asked questions about how the separation period operates in practice.
How long must a couple be separated before filing for divorce in Australia?
The minimum separation period is 12 months under s 48 Family Law Act 1975 (Cth). The Court must also be satisfied that there is no reasonable likelihood of reconciliation.
What constitutes legal separation for divorce purposes?
Legal separation occurs when at least one spouse communicates the intention to end the marriage and acts consistently with that intention. Physical relocation is not essential, but the parties must live separate lives — financially, socially, and emotionally.
Can separation occur while living under the same roof?
Yes. The Court recognises “separation under one roof” provided there is sufficient evidence that the relationship has ceased. This usually requires detailed affidavits from both parties and an independent witness.
How long do you have to be separated for divorce with children?
The 12-month requirement is the same for all couples, regardless of whether they have children. However, when there are children under 18, the Court must be satisfied that proper arrangements exist for their care before granting the divorce (s 55A Family Law Act).
What happens if you reconcile during the required separation period?
If reconciliation lasts less than three months, the prior separation can be added to the new period. If reconciliation continues three months or longer, the time resets and the 12-month period begins anew.
Do you need a legal document to prove separation?
No formal certificate is required, but applicants must demonstrate through affidavits, financial evidence, or witness statements that separation occurred on a specific date and has continued for 12 months without resumption.
Does the separation period affect property division?
The separation period itself does not directly control property division, but it defines the starting point for post-divorce timelines. Parties must apply for property settlement within 12 months after the divorce becomes final (s 44(3) Family Law Act).
Conclusion
The separation requirement is the cornerstone of Australia’s no-fault divorce system. It balances compassion with legal clarity — allowing couples a year to reflect and, if necessary, reconcile, before finalising the dissolution of marriage.
While the rule seems simple, its application often turns on evidence: dates, living arrangements, and intent. For this reason, individuals considering divorce should seek early legal advice to confirm eligibility and prepare the necessary documentation well before filing.
For professional guidance or to connect with a qualified Family Law practitioner, visit LegalFinda — Australia’s trusted platform for verified divorce and separation lawyers.
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