12 Months Separation Before Divorce in Australia: What You Need to Know

Australia adopts a no-fault divorce system. This means the Court does not investigate who was unfaithful, who caused the breakdown of the relationship, or who is morally “right” or “wrong.”

Instead, the Court focuses on one central question:

Has the marriage broken down irretrievably?

Under the Family Law Act 1975 (Cth), the legal proof of an irretrievable breakdown is 12 months separation before divorce. This requirement must be satisfied a divorce application can be filed.

Why Is 12 Months Separation Before Divorce Required in Australia?

The 12-month separation requirement is often described as a “cooling-off period,” but it serves several important legal and practical purposes:

To prevent impulsive decisions made in moments of anger or emotional distress
To give both parties time to reflect on whether reconciliation is possible
To allow practical arrangements to be considered, particularly regarding children and financial matters

If the separation period is less than 12 months, the Court will generally refuse to grant a divorce, except in very limited and exceptional circumstances.

It is important to understand that this period is not simply a procedural delay. It is a legal threshold that must be satisfied before a divorce can be granted.

Legal Definition of Separation and Separation Under One Roof

In Australian law, separation occurs when a married couple has ceased to live together as a married couple, even if they continue to reside in the same home. Separation does not necessarily require physically moving out of the family home.

The Court looks beyond physical distance and considers whether:

The parties have ceased living together as a married couple
There has been a substantial change in daily arrangements
Financial affairs are conducted independently
The parties present themselves publicly as separated

In practice, these legal criteria can take different forms depending on each couple’s circumstances. In some cases, couples continue living under the same roof for financial or parenting reasons. This is known as “separation under one roof,” which refers to a situation where a couple is legally separated but continues to reside in the same home while living independently and managing their own affairs.

The following scenarios illustrate how separation may be recognised under the law:

Same-roof separation: John and Mary continue living together for financial reasons but live independently and manage their own bills. The Court may still recognise that they are separated.
Financial independence: Both open separate bank accounts and manage their own daily expenses.
Separate daily routines: Couples may live under the same roof but have separate mealtimes, sleeping arrangements, and childcare responsibilities.
Public recognition: The couple informs friends and family that they are separated and no longer present themselves as married.

In cases where couples are separated under the same roof, the evidentiary standard is higher. Clear proof is required to demonstrate that the marital relationship has genuinely ended.

Property Settlement and Parenting Arrangements: Do Not Wait

A common misconception is that property division and parenting matters can be dealt with after divorce.

In reality:

Property settlement negotiations can begin during separation
Parenting arrangements should be addressed as early as possible
Strategic planning during separation is often critical

Importantly, once a divorce order becomes final, there is generally a 12-month time limit to commence property settlement proceedings in Court. Failing to act within this timeframe can significantly limit legal options.

Early planning reduces risk and protects your long-term position.

When Should You Speak to a Divorce Lawyer?

Obtaining a divorce order is usually procedurally straightforward.

However, divorce is only one part of the legal process.

The more complex and financially significant issues often involve:

Division of assets
Superannuation splitting
Parenting arrangements and parental responsibility
Child support considerations

The appropriate time to seek legal advice is not after the divorce is granted, but when you first decide:

“I no longer wish to continue this marriage.”

Early legal guidance ensures you are not placed in a reactive or disadvantaged position. Strategic advice during separation can prevent long-term financial and parenting disputes.

If you are currently separated or considering divorce, obtaining professional legal guidance early is crucial. The Brightstone Legal team can provide personalised advice on separation, property division, superannuation splitting, and parenting arrangements, helping you protect your rights throughout the separation and divorce process. Contact us today for expert advice.