You Can Apply for a Divorce 12 Months From Separation
In Australia, there is only one ground for a divorce being that the marriage has broken down irretrievably. This is proved by satisfying the court that the parties to the marriage have separated, and lived separately and apart, for a continuous period of not less than 12 months prior to the filing of the application for the divorce. This is proved by stating in the divorce application the date of the separation.
If the parties have been living separately and apart in different residences for the entire 12 months after the stated date of separation, no further evidence is required of the separation.
If the parties however have lived together separately in the same residence for all or part of the 12 months, it is necessary to provide further evidence in written affidavits about the circumstances of the separation and obtain corroborating evidence from third parties. This evidence might include conversations about one or both parties wanting to separate; changes in sleeping arrangements and the cessation of intimacy between the couple; changes to domestic circumstances such as performance of domestic chores and payment of expense; advising children, families and friends about the separation. Many separating spouses find it easier to wait until there has been a clear 12 months from when they commenced living in separate residences, so as to avoid the need for additional affidavit evidence about the circumstances of living separately under the same roof.
The period of 12 months cannot be shortened even if both parties agree.
But What If It Is Less Than Two Years Since The Date Of The Marriage?
If the parties applying for a divorce have been married for less than two years, it is necessary to obtain a certificate from a counsellor confirming the parties attended counselling. This is rarely needed, however. Given that a divorce application cannot be filed until 12 months after separation, It is often easier just to wait until another 12 months have passed so there is 2 years since separation and no need for the counselling certificate.
What If My Spouse Does Not Wish To Apply For A Divorce With Me?
One spouse can make the application for divorce whether or not the other party agrees or wants the divorce. Couples can choose to make a joint application for divorce which they both sign. This makes the divorce process simpler. However, one spouse can make a solo application without any consultation with the other spouse, although the application must be served on the other spouse. The only ground on which the other spouse can dispute the divorce application is whether there has been a separation for 12 months or not.
But Remember – a Divorce Ends the Marital Relationship Without Ending Clarifying Obligations or Entitlements in Respect of Property, Money and Children
A divorce does not stop a spouse making a court application about arrangements for their children, spouse or maintenance, or property settlement. It does not stop a parent making an application to the child support agency for the other parent to pay child support. In most cases, an application for property settlement or spousal maintenance must be made within 12 months of the divorce being absolute. In de facto relationships, the period is 2 years after separation. A married spouse can, however, seek the extension of this 12-month period if there are special circumstances. Similarly, a de facto partner can seek the extension of the two year period if there are special circumstances.
As a result, is often better for one or both spouses to defer applying for a divorce until after there has been a property settlement and resolution of any entitlements to spousal maintenance.
How Ramsden Family Law Can Help You
If you are considering a divorce and need guidance on the process, or if you require assistance in understanding your rights regarding property, finances, or parenting arrangements, our experienced team is here to help.
We provide clear, practical advice to guide you through every step with confidence. Our family lawyers can assist with filing or serving a divorce application and ensure you understand your legal obligations.
If you would like to speak with a family lawyer, please do not hesitate to contact our team today.
Posted in: Divorce, Latest News
February 21 2025
