Understanding Separation vs Divorce in Australia

By Walid Kalouche  

Going through a relationship breakdown can be a confusing time. While “separation” and “divorce” might seem interchangeable, they hold distinct legal meanings in Australia. Here’s a breakdown to help you navigate this process:

Separation: The Pause Button

Separation marks the end of a marriage or de facto relationship as a couple. It doesn’t necessarily involve moving out – you can be separated even while living under the same roof.  Separation can happen by mutual agreement or by one partner informing the other.

Signs of Separation, Even Under One Roof:

  • Sleeping in separate bedrooms
  • No longer sharing household chores
  • Separate finances
  • Not attending social events together
  • Informing friends and family about the relationship ending

De Facto Couples and Separation:

De facto couples (living together in a committed relationship) don’t get divorced. They simply separate.

Dealing with Financial matters

While married couples have one year after divorce to deal with their property affairs ( this can be many years ) with de facto partners they only have two years after separation to deal with property and financial matters through the courts. If you miss this window, you will need to apply for leave on the basis of hardship, and you will need a reasonable explanation for the delay .

Separation and Divorce: The Link to Ending the Marriage

Divorce legally dissolves a marriage. To get a divorce, you need to prove a 12-month period of separation, demonstrating the marriage has broken down irretrievably. Even if you share living space, you must show you haven’t lived together as a couple during this time. Evidence of separate finances, bedrooms and your friends’ statements can be helpful.

For Marriages Under Two Years:

If you’ve been married less than two years, attending counselling before applying for divorce is usually mandatory (except in cases of family violence or if you have moved on with a new partner or similar type reasonable explanation).

The Divorce Process: A New Chapter

The Family Law Act 1975 governs divorces, processed through the Federal Circuit and Family Court. It’s a relatively simple procedure. You can file an application jointly or individually, with filing fees that may be reduced for concession card holders.
The application needs to be served on your spouse, either through a lawyer or a process server. Opposition to the application is uncommon, usually contesting the 12 month separation period or jurisdiction issues.

Court Hearings and the Divorce Order:

Depending on your situation, attending a court hearing might not be required such as with Joint applications or those involving adult children (over 18) typically don’t require your presence. 

However, sole applications with minor children (under 18) usually involve a hearing.
The court grants a divorce order during the hearing, but it takes effect one month and one day later to become final and incapable of rescission. 

Importantly, this Divorce order doesn’t deal with property or parenting arrangements, which require separate legal processes.

Seeking Guidance:

If you need help navigating separation or divorce, contacting a family lawyer is recommended. The family law team at CK Lawyers is is distinctly qualified, highly experienced & intensely committed to your cause. We can explain your rights and guide you through the legal processes involved. You can book an appointment here

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