Can You Get a Divorce Before 12 Months Separation? (Including separated under one roof)

No. A divorce before 12 months separation isn't possible in Australia. You can't apply until you've been apart for at least 12 months, even when the marriage ended in every practical sense long before the paperwork catches up.

This is general information for anyone recently separated, including couples still sharing a house. It isn't legal advice for your situation.

It's one of the first questions people ask us, often from a friend's spare room or while still sharing a kitchen with the person they're separating from. The 12 months often starts earlier than people think. It can run while you're both still living in the same house, and a short attempt at getting back together won't necessarily wipe it.

Our separation and divorce lawyers spend a lot of time helping people work out exactly where their clock stands, because the rest of the divorce application hangs on that date.

 

Do you have to be separated for 12 months before you get a divorce?

Yes. Under the Family Law Act 1975, the only ground for divorce in Australia is that the marriage has broken down with no reasonable chance of you getting back together. You prove that by showing you've lived separately and apart for at least 12 months before the day you file.

Nobody has to prove fault. The court needs the dates to add up, and it needs to see that at least one of you meets the eligibility rules. Either you or your spouse must:

• be an Australian citizen by birth, descent or grant of citizenship
• live in Australia, regard it as home and intend to stay indefinitely
• have ordinarily lived in Australia for the 12 months before filing

Married for less than two years? You'll also need a certificate showing you've seen a family counsellor to talk about reconciliation. The court can let you go ahead without one in special circumstances, for example where it wouldn't be safe to attend counselling together.

 

Can divorce happen before 1 year? No, but other things can

No, divorce can't happen before a full year apart, but plenty of the practical work can. The divorce order is the smallest part of separating. It ends the marriage and lets you remarry. It doesn't divide a single dollar or decide which weekends the kids spend where.

In the first 12 months you can:

• reach a property settlement and formalise it with consent orders, without waiting for the divorce
• agree on parenting arrangements in a written parenting plan or in consent orders the court approves
• apply for a child support assessment through Services Australia
• tell Services Australia you've separated if you receive Family Tax Benefit or other payments
• review your will and the death benefit nomination on your super, because separating doesn't update either of them

 

Separated under one roof: how the 12 months still counts

Plenty of couples keep living in the same house after they separate. The mortgage still needs paying and South East Queensland rents aren't cheap.

The law allows for this, and time spent separated under one roof counts toward your 12 months. What changes is the proof. Because you shared an address, the court needs extra evidence that the marriage really ended, set out in sworn statements called affidavits.

Usually that means an affidavit from you (or from both of you, if you're applying jointly) and another from someone outside the relationship, such as a friend, relative or neighbour, who can back up what you've said. The Federal Circuit and Family Court of Australia explains what to file in its fact sheet on proving separation while living together.

The court looks for day-to-day changes like these:

• moving into separate bedrooms
• cooking, eating and doing laundry separately
• opening separate bank accounts and splitting the bills
• no longer going out together or attending events as a couple
• telling family, friends and Services Australia about the separation
• how the children were cared for while you both lived there

Take a Toowoomba couple who separate in March but can't yet afford two households. One of them moves into the spare room that week. By April they've split their bank accounts, and over Easter lunch they tell both families. Their 12 months starts in March, even though nobody moves out until the following January.

Staying under one roof has to be safe. If you're frightened of your partner, you don't need to stay to protect your divorce timeline, and help is available now. DVConnect Womensline is on 1800 811 811 and DVConnect Mensline is on 1800 600 636, both 24 hours a day. Lifeline is on 13 11 14. In an emergency, call 000.

 

What happens to the 12 months if you try to reconcile?

Trying again doesn't automatically cost you the time you've already put in. The law allows one period of getting back together, for up to three months, without resetting the clock. The months apart before and after can be added together, but the time you were back together doesn't count.

Say you separate at the start of January. In July you move back in together, and by the end of August you've decided it isn't working. You were apart for six months before, spent two months together, and now need another six months apart. The earliest you could file is early March the following year.

The clock starts again from zero if:

• the reconciliation lasts longer than three months
• you get back together more than once

If this sounds like your year, write the dates down now. You'll need them when you file.

 

How long can you be separated but not divorced?

There's no limit. You can stay separated for as long as you like, and some couples stay that way for years without ever filing. Nothing in the law forces you to divorce. Staying married does have side effects, though, and most of them involve money:

• your spouse may still benefit under your will or your super
• neither of you can remarry
• for married couples, the deadline to apply to court for property orders is 12 months after the divorce takes effect

For what happens after the 12 months are up, including hearing dates and when the order becomes final, see our guide on how long divorce takes in Australia.

 

How to divorce without losing everything

Losing everything is the fear behind a lot of calls we take. The divorce order doesn't decide who gets what. Property is dealt with separately, and there's no automatic 50/50 split. The court weighs each person's contributions and future needs, and the same rules apply to husbands and wives.

A few early steps protect your position:

• gather copies of bank statements, super statements, loan documents and tax returns
• don't move money or sell assets without advice, as it can count against you later
• get legal advice before you sign anything your former partner puts in front of you
• formalise any agreement with consent orders or a binding financial agreement, so it can't be reopened years later

Our property settlement lawyers can talk you through what a fair outcome might look like for your family.

 

Frequently asked questions

Can I file for divorce on the 12-month anniversary of my separation?

No. File from the day after, once a full 12 months has passed. An application filed even one day early won't meet the separation requirement, so count from the date the relationship ended and leave a small buffer if you're unsure of the exact day.

Does moving out start the 12 months?

Not on its own. Your separation starts when at least one of you ends the relationship and makes that clear to the other. That can happen weeks or months before anyone moves out, which is why the court accepts separation under one roof with the right evidence.

Does my spouse have to agree to the divorce?

No. You can make a sole application without your spouse's agreement, as long as you've been separated for 12 months and meet the eligibility rules. Your spouse is then served with a copy of the papers and can file a response before the hearing.

Will I need to go to court for my divorce?

Only in some cases. You must attend the hearing if you've made a sole application and there's a child of the marriage under 18. Joint applications, and sole applications with no children under 18, are usually decided without you there.

 

Talk to us about your separation date

If you aren't sure where your date lands, talk to our family lawyers in Toowoomba, Brisbane, Ipswich, North Lakes or Dalby. Call 1300 052 224 to book an appointment. We'll help you work out when you can apply.