Divorce in Australia can only be filed once a couple has been separated for at least 12 months.
Separation is considered to be a necessary condition for establishing an irretrievable breakdown of a marriage.
Our family lawyers know that divorce is never easy, no matter what the circumstances are. It’s one of the most challenging things to go through from start to finish.
In Australia, the Family Law Act 1975 established the principle of no-fault divorce. This means that the court does not consider why the marriage ended.
It’s important to note that you can be considered separated even while living under the same roof.
Still, additional proof may be required to demonstrate that you lived separately and apart during that time.
Understanding Separation Under One Roof
In legal terms, being ‘separated’ means that at least one person has decided to end the relationship and has communicated this to the other person. This can happen even if both partners continue to live in the same residence. If you’re living separate lives—eating, sleeping, and spending leisure time apart—it may be considered separation, even if you haven’t moved out.
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Take Note of Your Separation Date
The date of separation is a critical factor in answering the query: When can I get divorced in Australia? Here are some of the reasons:
- Eligibility for Divorce: In Australia you must be separated from your spouse for a specific period before applying for a divorce. This period is 12 months. Therefore, knowing the exact date of separation is vital to determine when you can get divorced in Australia.
- Property Division and Financial Settlements: The date of separation can impact the division of assets and debts. While assets and debts are typically valued as at the date of settlement and not separation, knowing your date of separation can help you to make arguments as to why post-separation assets should be excluded from the property pool, and this will be particularly relevant in short relationships.
- Reconciliation Periods: If you reconcile with your spouse during the separation period and then separate again, the date of separation may be reset depending on the length of the reconciliation. In Australia, if a couple reconciles for three months or more, the 12-month separation period starts again.
- Parenting Issues: The date of separation can be necessary for some child custody situations. It can affect decisions about children’s living arrangements, especially when the separation is abrupt.
Disagreement About the Separation Date
Having two different versions of the separation date can complicate matters, particularly when it comes to legal proceedings like divorce or property settlements. The dispute may arise due to differing perceptions of when the marriage effectively ended or if one party wants to expedite or delay the divorce process.
In such cases, the court will need to determine the official date of separation. This process may involve:
- Evidence Presentation: Both parties will have the chance to present evidence supporting their claimed separation date. This might include written communication like emails or text messages, witness statements, changes in financial arrangements, or any other evidence showing a shift in the relationship dynamic.
- Witness Statements: If any individuals can vouch for the changes in your relationship, their statements may be used as evidence. They could be friends, family, neighbours, or professionals like therapists or counsellors.
- Legal Evaluation: The court will evaluate the evidence and decide based on the facts. The decision can substantially impact the divorce proceedings, division of assets, and even child custody.
- Appeals: If one party disagrees with the court’s decision, they may have the right to appeal. However, the appeals process can be lengthy and costly.
Resolving Separation Date Disputes for Speedy Divorce Proceedings
Walker Pender Group was approached by a client struggling with a complex divorce due to a dispute regarding the separation date. Her ex-partner claimed their separation occurred in August 2022, whereas she insisted it began in May 2022.
Understanding that a minimum of 12 months of separation is required in Australia before filing for divorce, the Walker Pender Group promptly sought evidence demonstrating the actual separation date. We collected various types of evidence, including emails, text messages, and statements from family and friends, showing that the client and her ex-partner had been living separate lives since May 2022.
Upon presenting this evidence in court, the judge accepted May 2022 as the official separation date, allowing our client to file for divorce sooner than if the separation date was in August. This resolution expedited the divorce process and eased our client’s emotional burden during this challenging time. Walker Pender Group’s dedication to our client’s case led to a successful resolution, illustrating our commitment to aiding clients through complex legal issues.
Divorce Before 12 Months in Australia
In Australia, the law typically requires couples to be separated for at least 12 months before they can file for divorce.
However, there are some exceptions to this rule. If a couple has been married for less than two years, they must attend counselling to discuss the possibility of reconciliation before applying for a divorce.
If counselling is not possible, they must seek permission from the court to proceed with the divorce application.
This requirement ensures that couples make a genuine attempt to repair their marriage before finalising their separation.
It’s important to note that the Family Court may grant a divorce before the 12-month separation period in exceptional circumstances.
These cases often involve urgent situations, such as instances of domestic violence or other significant hardships.
In such cases, the applicant must provide substantial evidence to the court to support their request for an early divorce.
Impact of Reconciliation during the Separation Period
During a separation that eventually leads to divorce, it is quite common for couples to experience phases of reconciliation.
Nevertheless, these reconciliation periods can impact the 12-month separation period that Australian law mandates.
Short-term Reconciliation: What Counts and What Doesn’t
Reconciliation is the process of resuming a couple’s marital relationship after separation. In the legal sense, not every reunion counts as reconciliation.
Communication or contact may involve co-parenting activities, family events, or social gatherings but do not necessarily constitute reconciliation and therefore do not affect how long do you have to be separated before you can file for divorce.
In the eyes of the law, a reconciliation lasting less than three months does not interrupt the separation period. However, if the reconciliation lasts longer than three months, the clock resets and a new 12-month separation period must begin.
If there are multiple reconciliation periods, as long as none exceed three months, they won’t count towards the 12-month separation period. Should the reconciliation period exceed three months, the 12-month separation period must be restarted.
The Effect of Reconciliation on the Separation Timeline
Reconciliation affects how long do you have to be separated before you can file for divorce. You can add the period before the reconciliation if you and your spouse reconcile for less than three months. It effectively prolongs the total separation timeline but doesn’t invalidate the time spent apart.
On the other hand, if the reconciliation lasts longer than three months, the initial separation period before reconciliation will not count towards the 12-month separation requirement. The 12-month clock would start again from the time you separate after reconciliation.
Therefore, couples considering reconciliation should bear in mind the potential impact on the separation period and the subsequent ability to apply for a divorce.
Always seek advice from a legal professional when navigating these complex scenarios to ensure you fully understand the implications of reconciliation during the separation period.
Clarifying the Separation Timeline After Reconciliation
Our client, facing the emotional turmoil of divorce, approached Walker Pender Group needing clarification about the impact of a five-month reconciliation period on her divorce application.
The question at hand is: How long do you have to be separated before you can file for divorce? The client had initially separated from her spouse, living apart for nine months before reconciling for five months.
Uncertain about her position, she was still determining whether she could now proceed with her divorce.
Understanding the client’s concerns, our team at Walker Pender Group dove into action. We explained that under Australian law, a three-month reconciliation period resets the separation clock.
The client was initially disheartened, but we clarified that the time spent separated before the reconciliation was partially ‘lost.’
We advised her to reinitiate the separation, emphasising that the initial nine months, though not directly contributing to the required 12-month separation period for a divorce application, could still play a role in negotiations and settlements.
At Walker Pender Group, we ensured her legal journey was guided by precision, empathy, and understanding.
Navigating The Complexities Of Separation And Divorce?
Walker Pender Group is here to guide you every step of the way. We will let you understand how long do you have to be separated before you can file for divorce.
With our expert advice, you can understand your legal standing and the timeline requirements for divorce in Australia. Don’t navigate this journey alone – contact Walker Pender Group today for a confidential consultation.
