Yes. Under Australian law, you must be separated from your spouse for at least 12 months before you can apply for a divorce. This is a mandatory requirement, and there are no exceptions that allow you to apply earlier.
However, there are some important nuances to this rule that many people misunderstand. This guide explains how the 12-month separation period works, what happens if you reconcile, and what you can do during this time.
Why Does Australia Require 12 Months of Separation?
Australia has a “no-fault” divorce system. This means you do not need to prove that your spouse did something wrong or assign blame for the breakdown of the marriage.
The only ground for divorce in Australia is that the marriage has broken down irretrievably, with no reasonable likelihood of reconciliation. The 12-month separation period serves as evidence that the breakdown is permanent.
This approach was introduced under the Family Law Act 1975 to remove the adversarial nature of proving fault and to encourage a more constructive approach to ending marriages.
When Does the 12 Months Start?
The separation period begins when one, or both parties decide the marriage is over, they communicate this intention to the other party, if necessary, and the party or parties act on that decision. This usually involves:
- Communicating to your spouse that the relationship has ended. This can be done, verbally, in writing or by conduct
- Making practical changes to how you live, such as moving to separate bedrooms or moving out of the family home
- Informing others that you have separated
You do not need both parties to agree that the relationship is over. Separation can occur even if one person wants the marriage to continue.
Can You Separate While Living in the Same House?
Yes. Many couples continue to live under the same roof after separating. This might be due to financial constraints, caring for children, or practical considerations while arranging future living situations.
If you separate while living together, you will need to provide additional evidence when you apply for divorce to show that your relationship genuinely ended. This typically includes an affidavit explaining how you lived separately and a supporting affidavit from someone who observed your situation.
Signs that demonstrate separation under one roof include sleeping in separate bedrooms, managing finances independently, no longer sharing meals as a couple, dividing household duties, and informing family and friends that the relationship has ended.
What Happens If You Get Back Together?
The law allows for one period of reconciliation without “resetting” the 12-month clock, provided the reconciliation lasts less than three months.
Reconciliation Under Three Months
If you reconcile and live together as a married couple for up to three months but then separate again, the time before the reconciliation still counts toward your 12 months. The reconciliation period itself does not count, but it does not reset the clock either.
For example, if you separate in January, reconcile in July for two months, and then separate again in September, your original January separation date still stands, and you would be eligible to apply for divorce in March of the following year.
Reconciliation Over Three Months
If you reconcile and live together as a married couple for more than three months, the 12-month period restarts from the date of your second separation.
This rule exists to encourage couples to make a genuine attempt at reconciliation without fear of losing their separation date entirely.
You Can Start Other Processes Before 12 Months
While you cannot apply for divorce until you have been separated for 12 months, you do not need to wait to address other legal matters.
Property Settlement
You can begin negotiating property settlement at any time during separation. In fact, many couples finalise their property matters before the divorce is granted.
There is no requirement to wait for the divorce before reaching agreement on how to divide assets and debts. You can enter into binding financial agreements or consent orders which outline the division of property between you following the breakdown of the marriage while still legally married.
Parenting Arrangements
Arrangements for children can and should be made as soon as practical after separation. The 12-month rule applies only to divorce, not to parenting matters.
If you cannot agree on parenting arrangements, you can attend family dispute resolution (mediation) and, if necessary, apply to the court for parenting orders at any time.
Legal Advice
Speaking with a family lawyer early in the process can help you understand your rights and plan effectively. You do not need to wait until the 12 months have passed to get advice.
What If We Were Married for Less Than Two Years?
If you have been married for less than two years, you can still apply for a Divorce provided that you have been separated for 12 months. Prior to recent changes to legislation, you were required to attend counselling with a family counsellor before applying for divorce. The counsellor would discuss whether there is any reasonable possibility of reconciliation. The counsellor would then provide you with a certificate that you filed with your divorce application. This is no longer required.
Common Questions About the 12-Month Rule
Can the Court Shorten the Period?
No. The 12-month separation period is a strict requirement under the Family Law Act. The court does not have discretion to grant a divorce earlier, regardless of the circumstances.
What If My Spouse Refuses to Accept We Are Separated?
Separation can be unilateral. You do not need your spouse’s agreement to be separated. What matters is that you have formed the intention to end the marriage, communicated that intention and acted on it.
Your spouse’s disagreement does not prevent you from being separated or from applying for divorce.
Do We Need to Tell Anyone We Have Separated?
There is no legal requirement to formally notify anyone of your separation. However, informing family members, friends, and relevant contacts creates a record that can support your divorce application, particularly if there are disputes about the separation date.
What Happens If We Cannot Agree on the Separation Date?
If you and your spouse disagree about when separation occurred, the court will consider the evidence and determine the date. This is one reason why documenting your separation, including telling others and making practical changes, is important.
Time Limits After Divorce
While you must wait 12 months to apply for divorce, be aware of time limits that apply after the divorce is granted.
For married couples, property settlement claims must be made within 12 months of the divorce order becoming final. If you miss this deadline, you will need to seek the court’s permission to proceed, which is not guaranteed.
This is why many couples address property settlement before or at the same time as divorce, rather than waiting.
Plan Ahead During the 12 Months
The 12-month separation period does not need to be a time of uncertainty. Use this time to:
- Understand your legal rights and options
- Gather financial documentation for property settlement
- Establish parenting arrangements that work for your family
- Plan your financial future
- Seek emotional support
Our family law team can provide advice at any stage of separation, helping you understand the process and plan effectively for the future.
Book a confidential consultation to discuss your separation and what comes next.
