A minimum separation period of 12 months is required before you can apply for a divorce. For instance, if your separation began on 20 July 2020, you’re eligible to submit the application on or after 21 July 2021. You can apply for an extension of time but it may be difficult and typically, and will add to the cost involved.

To meet the requirement of being separated for at least 12 months before applying for a divorce, “separation” is defined as living separately and apart, which can include living under the same roof but leading separate lives. This arrangement is quite common.

However, if you haven’t physically lived apart for the full 12 months, you’ll need to provide additional information to the Court to establish that despite residing together, you were indeed separated during that time. The Court may request specific details, such as how you communicated to your former partner that the marriage was over and whether your family and friends were aware of the separation.

To support your claim of separation, you’ll need to submit an Affidavit detailing your circumstances along with an Affidavit from a friend or family member who can confirm your separation while living together. This process helps demonstrate to the Court that you meet the separation requirement for divorce.

In Australia, we have a ‘no fault’ divorce system. This means that the Court will grant you a divorce if it is satisfied that there has been an irretrievable breakdown of marriage, indicating that there’s no reasonable chance for normal married life to continue. Once this is established and the mandatory 12-month separation period has elapsed, a divorce can be granted, even if only one party desires it.

How long do I need to wait before I can remarry?

You’re not permitted to remarry until your divorce is officially finalized. The typical steps involved in applying for a divorce are as follows:

• Filing an application for divorce along with supporting documents with the Court.
• Serving the divorce papers on your former partner, either by post or through a process server.
• Receiving a Court date typically scheduled 4-6 weeks from the application filing date.
• If all information provided to the Court is accurate and service has been completed on your former partner, the Divorce order will become final one month and one day after the Court date. For instance, if the Court date is 23 August 2020, the divorce becomes final on 24 September 2020.

Even if you were married overseas, you’re still eligible to apply for a divorce in Australia if at least one of the parties:

• Considers Australia as their home and intends to reside here permanently.
• Is an Australian citizen by birth or descent.
• Has been granted Australian citizenship.
• Typically resides in Australia and has been living here for at least the preceding 12 months.

Before granting a divorce, the Court must ensure that suitable arrangements are in place for any children of the marriage under the age of 18. However, no formal arrangements or orders concerning the children are necessary. The divorce application includes questions about the children, which you must answer, and you’re also required to confirm orally at the Court hearing that appropriate care arrangements are in place for the children.

These arrangements can be straightforward, such as stating that the children spend time with both you and your former partner by mutual agreement. If there’s disagreement about the care arrangements, you might inform the Court, for example, that you’re engaging in mediation or that there are ongoing Family Court proceedings regarding the children’s care arrangements.

It’s important to note that parties who have separated can apply for parenting and property orders as soon as they’ve separated; there’s no need to wait until the divorce is finalized.

Property settlements and parenting arrangements are dealt with separately to the divorce itself. However, it’s crucial to understand that a party to a divorce has only 12 months from the date the divorce is finalized to lodge an application in the Family Court for a property settlement.