Navigating a relationship breakdown is an incredibly heavy experience, where your primary focus is often just supporting your family and finding your footing. As you move from the initial shock toward seeking a sense of certainty, you may find yourself asking, “How long do you have to be separated before divorce is legally possible?”
Under Australian Law, the divorce process is governed by a “no-fault” principle, meaning the family court does not look for a reason why the relationship ended, but rather seeks evidence that the marriage has irretrievably ended.
To apply for a divorce, you must have been separated for a minimum of 12 months and one day. This separation period is a strict requirement under the Family Law Act 1975. While this timeframe provides a clear legal boundary, the complexities of family law matters, such as property settlement, parenting arrangements, and child support, often begin the moment the relationship ends.
How Long After Separation Can You Divorce?
In Australia, the law requires a continuous 12-month period of separation before the court will grant a divorce order. This period is used to prove the “irretrievable breakdown” of the marriage. It is important to note that if you and your ex-partner briefly reconcile (for less than three months) and then separate again, you may be able to aggregate your separation time. However, if the reconciliation lasts longer than three months, the 12-month clock resets.
When Can You Divorce in Australia?
You can apply for a divorce once the 12-month requirement is met, provided that either you or your spouse:
- Is an Australian citizen (by birth, descent, or grant);
- Regard Australia as your permanent home; or
- Ordinarily live in Australia and have done so for the 12 months immediately prior to filing the divorce application.
If you were married overseas, you can still apply for divorce in Australia as long as you meet these residency or citizenship requirements.
Separation Under One Roof: Do You Have to Move Out?
A common misconception is that you must live in different houses to be considered “separated.” In reality, many couples remain living in the same home due to financial hardship or to maintain stability for their children. This is legally known as being separated by one roof.
To satisfy the Federal Circuit and Family Court of Australia that you have lived separate lives while sharing a residence, you will need to provide evidence. The court looks for changes in the relationship, such as:
- Moving into separate bedrooms.
- Opening separate bank accounts.
- Ceasing to perform domestic duties for one another (e.g., cooking or laundry).
- Informing family and friends about the relationship breakdown.
If you are in this situation, you must file an affidavit with your application. It is highly recommended to get legal advice from a family lawyer to ensure your affidavit meets the court’s strict evidentiary standards.
The 2-Year Rule: Counselling Certificates for Short Marriages
If you have been married for less than two years, there is an additional requirement before you can apply for a divorce. The court requires you to attend counselling with a family counsellor to discuss the possibility of reconciliation.
Once you attend counselling, you will receive a counselling certificate which must be attached to your divorce online application. If you cannot attend, for instance, due to safety concerns or because you cannot locate your former partner, you may need to seek permission from the court to proceed without it.
Legal Advice: The Step-by-Step Divorce Process in Queensland
The path to a final divorce order typically follows these steps:
- Preparation: Gather your marriage certificate and ensure you have met the 12-month separation requirement
- Application: You can file a sole application or a joint application through the Australian Government’s eCourts portal.
- Filing Fees: The current fees for a divorce application in 2026 are approximately $1,125, though a reduced fee of $375 is available for those experiencing financial hardship.
- Service of Documents: If filing a sole application, you must “serve” the papers to your ex partner (you cannot do this yourself).
- Court Hearing: In many cases, you do not need to attend court. However, if there are children under 18, the court must be satisfied that proper arrangements have been made for them before the divorce hearing can conclude.
- Final Decision: If the court is satisfied, a “Decree Nisi” is issued. The divorce order becomes final exactly one month and one day after the court hearing.
Property Division and Parenting Orders
It is crucial to understand that a divorce only legally ends the marriage; it does not automatically settle your asset pool or decide parenting orders.
- Property Settlement: You can begin your property division negotiations as soon as you separate. You do not need to wait for the divorce.
- Time Limits: Once your divorce order is finalised, a strict 12-month “countdown” begins. You must apply to the court for property orders or financial support within this timeframe, or you may lose your right to do so.
- Formalised Parenting Arrangements: Similarly, child support arrangements and custody should be addressed through parenting orders or a parenting plan to provide security for the kids.
Frequently Asked Questions
How long do you have to be separated before divorce in Queensland?
In Queensland, as in the rest of Australia, you must be separated for at least 12 months and one day before you can file for divorce.
Do I need to attend court for my divorce?
If you have made a joint application, you generally do not need to attend court. If you made a sole application and there are children under 18, you or your family lawyer will usually need to attend the divorce hearing (often via telephone or video link).
Can I get a divorce if we still live together?
Yes, this is called “separation under one roof.” You will need to provide an affidavit as evidence that you are living separate lives despite sharing the home.
Does divorce settle my property and kids?
No. A divorce is only the divorce (ending the legal marriage). Property arrangements, child support, and custody are handled separately. It is wise to get legal advice early to ensure these family law matters are resolved alongside the divorce.
How Marino Law Can Help
Navigating the federal circuit and family court system can be overwhelming during an already emotional time. Since 2009, Marino Law has been helping Queenslanders move forward with legal advice that is grounded, empathetic, and expert.
Whether you need help with a complex property settlement, drafting parenting arrangements, or simply ensuring your divorce application is filed correctly, our team is here to provide the clarity you need. Feel free to reach out for our support.
