Is there a minimum period of separation before a divorce can be granted?

20/12/2021

Is there a minimum period of separation before a divorce can be granted?

The process of seeking a divorce is to bring a legal end to a marriage, and allow either party to enter into a new marriage if they chose to do so. Applications for Divorce can be made to the Federal Circuit and Family Court of Australia once parties have been separated for 12 months and 1 day.

Separation can be considered to have occurred even though parties may continue to live in the same home. If you have been living in the same home for all or part of the 12 months after separation, extra information will be needed before you can apply for a divorce to prove to the Court the marriage has ended. Some things you may need to note to confirm separation has occurred are:

• A change in sleeping arrangements – ie. no longer sharing the same bed;
• Reducing shared activities together or socializing together with family/friends;
• Dividing up the finances eg. each paying separately towards previously joint expenses, or opening separate bank accounts;
• Whether family and friends are aware of the separation;
• Decline in performing household duties for each other.

The Federal Circuit and Family Court of Australia website provides a step by step guide on how to apply for a Divorce: https://www.fcfcoa.gov.au/fl/divorce/apply.

An application for divorce can be applied for either jointly by the parties, or by one party alone. If only one party is filing the application, they do not need the consent of the other party to apply for a divorce, provided they meet the legal requirements to seek a divorce. 

It is important to note that seeking a divorce is entirely separate from negotiating a property settlement. How the property of a relationship is divided can be discussed and agreed immediately after separation and there is no obligation for the parties to wait 12 months to commence negotiating a property settlement.

The same applies in relation to the parenting arrangements for children, and parties are encouraged to make arrangements for children to spend time with each of their parents after separation, provided there are no risks for the children in doing so.

If you are unsure of how to apply for divorce or require advice regarding your property and/or parenting matters, contact Gordon Legal today to speak with a family law expert.