SEPARATION & DIVORCE

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Yes, you must be separated for at least 12 months before you can apply for a divorce. This requirement shows the Court that the marriage has irretrievably broken down. Separation can include living under the same roof, as long as you are living separate lives—emotionally and physically. The 12-month period must be continuous, although short attempts at reconciliation (less than 3 months) are allowed without restarting the separation period entirely.

You can still apply for a divorce even if you and your former partner continued living under the same roof during the 12-month separation period. This is known as "separation under one roof."

In these cases, you’ll need to show the Court that, despite living in the same home, you were living separate lives. This could include evidence that:

• You were no longer in a romantic relationship
• You slept in separate rooms
• You didn’t share meals or social activities
• You stopped performing household duties for each other
• Friends or family were aware of the separation
   

You’ll need to provide extra documentation—usually an affidavit from you (and possibly your ex-partner) explaining the nature of the separation, and sometimes a third-party affidavit from someone who is aware of your situation.

No, a divorce only legally ends your marriage. It does not resolve issues relating to property division or parenting arrangements. If you need to divide assets, superannuation, or debts, you’ll need to reach a separate property settlement, either by agreement or through the Court. Likewise, if you have children, you’ll need to arrange parenting plans or orders to determine where the children live, how much time they spend with each parent, and who makes major decisions.

Importantly, once your divorce is final, you only have 12 months to apply to the Court for property and/or spousal maintenance orders (unless you get special permission from the Court to apply out of time). So it's best to get legal advice early.

A family lawyer helps you navigate the legal process of divorce, ensuring that everything is done correctly and in accordance with the law. While applying for a divorce might seem straightforward, there are important legal requirements — such as proving separation and meeting time limits — that must be met. 

Our lawyers at MD Law group can guide you through the paperwork, timelines, and court procedures, helping to avoid delays or complications. Having the right legal support makes the process smoother and gives you peace of mind during a difficult time.

Yes, you can finalise your property and financial matters at any time after separation, and even before applying for divorce. In fact, many couples choose to resolve these issues early to reduce stress and uncertainty.

You can formalise your agreement through:

• A Binding Financial Agreement; or
• Consent Orders filed with the Federal Circuit and Family Court of Australia.
   

These documents make your agreement legally binding and enforceable, giving both parties certainty moving forward.

You must apply to the Court for property settlement and/or spousal maintenance within two years of the date of separation. After this time, you’ll need special permission from the Court (known as "leave") to proceed, and it’s not always granted.  This two-year limitation period applies whether your relationship was same-sex or opposite-sex, and regardless of whether you lived together the entire time.

To determine whether your relationship qualifies as de facto under Australian law, the Court will consider factors such as:

• The length of the relationship (generally at least two years)
• Whether you lived together on a genuine domestic basis
• Whether you had a sexual relationship
• Any financial dependency 
• Property ownership or sharing
• Whether you had children together
• Public perception of your relationship

Yes, under the Family Law Act 1975, de facto couple has the same legal rights as married couples when it comes to property settlements, spousal maintenance, and parenting arrangements.