How divorce works in Australia: the 12-month separation rule explained

Australia has a no-fault divorce system, which means the court does not look into who was "responsible" for the marriage ending. The only thing that needs to be established is that the marriage has broken down irretrievably, and under section 48 of the Family Law Act 1975 (Cth), the way that is demonstrated is a period of separation of at least 12 months and one day before a divorce application can be filed.

That 12-month clock starts from the date of separation, not the date either party decides to formally act on it, and it needs to run continuously in the sense that the law recognises before an application can proceed. One detail that surprises a lot of people is that you do not need to be living in separate homes for this period to count — separation "under one roof" is legally recognised in Australia, provided you can show the relationship has genuinely ended in the ways that matter, such as no longer presenting as a couple, sleeping separately, and not sharing the day-to-day aspects of a marriage. This can matter a great deal for people who cannot immediately afford, or arrange, to move out while a divorce is pending.

There is also a residency requirement alongside the separation period: either you or your spouse needs to have been an Australian citizen, or ordinarily living in Australia, for the 12 months immediately before the divorce application is filed. And if the marriage lasted less than two years before separation, the law generally requires the applicant to attend counselling with a family counsellor and file a counselling certificate with the court, or otherwise obtain the court's permission to proceed without one.

Applications are filed through the Federal Circuit and Family Court of Australia, generally via the Commonwealth Courts Portal, and can be made either as a joint application — where both spouses apply together — or a sole application, where one spouse applies without needing the other's agreement. A sole application still needs to be served on the other spouse, and there are specific rules about how that service needs to happen, particularly if you don't know where they currently live.

One point worth understanding clearly before you start the process: a divorce order only ends the legal marriage. It does not, by itself, resolve how property or finances will be divided, and it does not deal with parenting arrangements for any children involved. Those are entirely separate legal processes, generally requiring their own applications for property settlement or parenting orders, whether by agreement, consent orders, or a contested application to the court — and there are time limits for applying for property orders after a divorce becomes final, which is one of several reasons it's worth getting advice on the full picture rather than treating the divorce application in isolation.

This article describes the general divorce process in Australia and is not legal advice for your specific circumstances — every family's situation is different, and requirements can change. If you are considering separation or divorce, a family lawyer can help you understand how the process, and any related property or parenting matters, apply to your situation specifically. Our directory lists Australian family lawyers by area if you are ready to get advice.

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