Separation and divorce in Australia: the first steps

Separation is a hard time, and the legal side can feel overwhelming. This guide sets out the first steps, explains how separation differs from divorce, and covers how divorce actually works in Australia.

Separation and divorce are different things

Separation is when you and your partner stop living together as a couple. It is a change in the relationship, not a court process. You do not need to apply for anything to be separated.

Divorce is the formal legal end of a marriage. It is a separate step, and it does not deal with your property or your children. Those are handled on their own tracks. You can sort out property and parenting without ever applying for a divorce, and many people do.

The first practical steps

A few steps help in almost every separation.

Record the date you separated, as it matters for divorce and for property time limits. Keep yourself and any children safe, and seek help immediately if there is family violence. Gather your financial documents, including bank statements, loan details, superannuation, and tax returns. Get early legal advice so you understand your position before you make decisions.

You can be separated and still live under one roof for a time. If you do, you may later need to show the Court that the relationship had genuinely ended.

Applying for a divorce

Divorce in Australia is handled by the Federal Circuit and Family Court of Australia. The law is the Family Law Act 1975, which applies across the country. The main requirements are as follows.

• You must have been separated for 12 months and one day before you apply.
• You can apply on your own or jointly with your former partner.
• You or your spouse must be an Australian citizen, or have lived in Australia for at least the 12 months before filing.
• If you were married for less than 2 years, you usually need to attend counselling and file a certificate, or get the Court's permission to apply without one.
• If there are children under 18, the Court must be satisfied that proper arrangements have been made for their care before it grants the divorce.

Children and parenting

Parenting arrangements are decided separately from divorce, by reference to the best interests of the child.

The law changed on 6 May 2024. The presumption of equal shared parental responsibility was removed. The Court now works through a shorter list of factors to decide what is in a child's best interests, and there are new provisions on how separated parents make decisions about major long-term issues. The law has never required children to spend equal time with each parent.

Property

Dividing property is also separate from divorce. You can reach an agreement, formalise it through consent orders or a binding financial agreement, or ask the Court to decide. There are time limits, so do not leave it too long. There is a separate article on property settlement in this series.

Frequently asked questions

How long do I have to be separated before I can divorce? You must be separated for 12 months and one day before you can apply.

Do I have to go to court to get divorced? Usually not in person for a simple application, especially a joint one. The application is made to the Federal Circuit and Family Court.

Does divorce sort out my property and children? No. Property and parenting are dealt with separately, on their own tracks.

Can we be separated while still living together? Yes. This is called separation under one roof, and you may need to show the relationship had ended.

Keep reading

• Family law
• Property settlement after separation: how it works
• Parenting arrangements and the best interests of the child

This article contains general information only and is not legal advice. For advice about your situation, please contact us. Liability limited by a scheme approved under Professional Standards Legislation.