How long do you have to be separated before you can file for divorce?
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.
Legal Parameters of Divorce in Australia
How long do you have to be separated before you can file for divorce, and what are the legal parameters surrounding it?
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.
The only ground for divorce is that the marriage has broken down irretrievably.
Specifically, this requires demonstrating two essential conditions:
Separation: You and your spouse must have been separated for at least 12 months, indicating that the marriage has ended and there is no reasonable likelihood of reconciliation. You can still be separated and living under the same roof.
Irretrievable Breakdown: How long do you have to be separated before you can file for divorce? There must be no chance of reuniting or repairing the marriage. This is evidenced by the 12 months of separation.
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.
Unlike some jurisdictions, Australia does not require proving any element of fault, such as adultery or cruelty, for a divorce to be granted. The focus is solely on the irretrievable breakdown of the marriage.
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How Does the Divorce Process Work in Australia?
How long do you have to be separated before you can file for divorce, and how does the process work in Australia?
The divorce process in Australia is relatively straightforward, focusing primarily on the irretrievable breakdown of the marriage. Here are the typical steps:
Application: After 12 months of separation, you can complete a divorce application form. This can be done individually or jointly.
If you’ve been married for less than two years, you’ll need to attend counselling or get permission from the court to apply for a divorce.
Filing the Application: Submit the application online through the Commonwealth Courts Portal. There is a filing fee, though you might be eligible for a reduction in certain circumstances.
Service of Documents: If you filed the application alone, you must serve divorce papers on your spouse. A third party aged 18 or over needs to physically deliver the documents to your spouse.
Response: Your spouse will have an opportunity to respond to the application.
Hearing: If you have children under 18, you (the applicant) must attend the court hearing. If you filed a joint application or there are no children under 18, you don’t need to attend.
Granting of the Divorce: If the court is satisfied that the marriage has broken down irretrievably, it will grant a divorce order, known as a ‘decree nisi.’
Finalisation: The divorce becomes final one month and one day after the decree nisi is issued; at this point, it becomes a ‘decree absolute.’ You can apply for a certificate of divorce if you wish.
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.
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.
