Australia has only one ground for divorce: the marriage has broken down irretrievably, demonstrated by 12 months of separation. Two parts of this rule surprise almost everyone — separation doesn't require anyone to move out, and it doesn't require any formal document.
When Does Separation Legally Start?
Separation begins when at least one spouse forms the intention that the marriage is over, communicates it (by words or conduct), and acts on it. There is no form to file and no need for both parties to agree — one person can end the marriage. The date matters, so note it: it starts the divorce clock and can be relevant to property matters.
Can We Be Separated While Living in the Same House?
Yes — this is called separation under one roof, and it is extremely common while finances, children's stability or housing are sorted out. The law looks at whether the marriage has genuinely ended in substance, considering things like:
- Sleeping in separate rooms
- Ceasing the sexual relationship
- Separating finances and bank accounts
- No longer doing household tasks for one another
- Telling family, friends and agencies (Centrelink, Medicare) of the separation
If some or all of the 12 months was spent under one roof, the divorce application must include extra evidence — typically an affidavit from you and often from an independent witness (a friend or family member) confirming the separation. We prepare these regularly.
What If We Briefly Got Back Together?
The law allows one reconciliation of up to 3 months without restarting the clock — the periods of separation before and after are added together. A reconciliation longer than 3 months resets the 12-month period.
Married Less Than Two Years?
If you apply for divorce within two years of the wedding, you generally must first attend counselling and file a certificate, or seek the court's permission. Timing advice matters here.
Divorce Is Not the Deadline That Matters Most
Property settlement and parenting arrangements do not have to wait for the divorce — and in fact, divorce starts a strict 12-month time limit for property claims. Many people are better served finalising property before or promptly after the divorce order.
Separated — or about to be?
One free consultation now can save expensive problems later. Call (02) 9633 3122 — English and Tamil.
General information only, not legal advice.
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