Separation and Divorce

Separation occurs when one person to a marriage or de facto relationship communicates to the other person that the marriage or relationship is over and that there is no prospect of reconciliation.

How do I know if I am ‘legally’ separated?

Separation can be initiated by one or both persons.  It does not require the consent of both. It is important to note the date of separation as this can impact your ability to apply for property settlement and divorce

When can I apply for a divorce?

To apply for divorce in Australia, the following requirements must be met:

1. Either you or your spouse must be an Australian Citizen and have lived in Australia for the previous 12 months or regard Australia as your home and intend to live here indefinitely.
2. You and your spouse have been separated for a period of 12 months and 1 day prior to filing an application for divorce.
3. If you and your spouse have been married for less than two years, you must undergo counselling with a marriage counsellor to see if reconciliation is possible. Where reconciliation is not possible you will be issued with a certificate. Otherwise, you will need to file a document (known as an affidavit) with the Federal Circuit and Family Court of Australia setting out why counselling is inappropriate.

It is possible to obtain a divorce where you and your spouse continued to live together under the same roof post separation, or where you and your spouse reconciled for a short period of time(s) following separation depending on the circumstances of the case. Moores can advise as to whether it is an appropriate time to apply for divorce.

Importantly, divorce does not address parenting or property and financial matters. These are dealt with separately. 

How long after separation or divorce can I make a claim for property settlement and spousal maintenance?

There are time limits that apply to a claim for a property settlement and spousal maintenance following a divorce or separation.

You have 12 months from the date of your Divorce Order to make a claim for a property settlement or spousal maintenance. For de facto relationships, you have two years from the date of separation to make a claim for property settlement or spousal maintenance.

If the above time periods lapse, you need to seek leave (permission) of the Federal Circuit and Family Court of Australia to apply for a property settlement or spousal maintenance.

To avoid the stress of ‘running out of time’ we recommend that you initiate your property settlement and spousal maintenance claims prior to applying for a divorce.

How Moores can help

We can assist you with your application for divorce to ensure specific rules and requirements are met. Contact us for more detailed and tailored help or get started with the Moores Family Law online assistant. The service is confidential and free, you’ll get valuable feedback and a personalised separation plan.