How long do we need to be separated before we can divorce?

Under the Family Law Act 1975 (Cth), there is only one ground for divorce: that the marriage has broken down irretrievably. This is proven by being separated for a period of 12 months and 1 day.¹

You cannot apply for divorce early, even if you both agree.

What Constitutes “Separation”?

Separation occurs when one or both parties communicate the intention to end the relationship, and then act on it. You do not need to sign a document to be “officially” separated.

Separation Under One Roof

In the current housing market, it is very common for couples to remain living in the same house after separating for financial reasons. This is called “separation under one roof”.

You can still count this time towards your 12 months, but you must prove to the Court that you were actually separated. You will need to file an affidavit (and usually one from a third party witness) proving distinct separation of lives, such as:²

• Sleeping in separate bedrooms.
• Ceasing sexual relations.
• Separate bank accounts and finances.
• Cooking and eating meals separately.
• No longer attending social events as a couple.
• Family and friends knowing you are separated.

The “Kiss and Make Up” Rule (Reconciliation)

If you get back together to try and work things out, you don’t necessarily restart the 12-month clock.

• Under 3 months: If you reconcile for less than 3 months and then separate again, you can add the two periods of separation together to reach the 12-month total.³
• Over 3 months: If you are back together for more than 3 months, the clock resets to zero.

Important Time Limits After Divorce

Once your divorce order becomes final, a strict clock starts ticking for your financial separation.

• Property Settlement: You have 12 months from the date of your divorce to apply to the court for a property settlement or spousal maintenance.⁴
• De Facto Couples: You have 2 years from the date of separation.

If you miss these deadlines, you may lose your right to claim property division.

Related Family Law Topics

• Divorce application process
• De facto relationship rights
• Do I need consent orders?
• Family Law Practice Area

Expert Guidance

Proving separation under one roof can be tricky. Bell & Senior’s family lawyers can draft the necessary affidavits to ensure your divorce application is accepted the first time.

Separated? Contact our family law team via email or call (07) 5532 8777.