Separation
To be considered legally separated you would need to show physical and emotional separation. This means that the marriage or de facto relationship has broken down and you have been living apart.
We recommend that you record the date of separation and, where possible, have it confirmed it writing to avoid a potential dispute in the future. Typically, you would handle a property settlement immediately after separation. However, it is important to be aware of the limitation periods where property has not been attended to. A de facto relationship has a two-year time limit whilst a marriage has a 12-month requirement after the divorce is final. For this reason, the parties will generally settle property disputes before divorcing.
However, there may be some circumstances where physical separation is not possible or suitable. If you are separated yet you remain living under one roof, you would need to demonstrate that you have been leading separate lives.
For further information see Separation page.
Divorce
Dealing with family law issues can be confusing and emotionally challenging. If a marriage breaks down, the law is not concerned with who is at fault. The only ground for divorce in Australia is irretrievable breakdown. Our ‘How to Divorce’ guide will take you through each step of the process.
In order to obtain a divorce, you would first need to make an application to the Federal Magistrates Court. You can apply either separately or together. The court will then allocate a hearing date approximately 8 weeks after filing your application.
Once you have a hearing date, a sealed copy should be served on your spouse, provided it was not a joint application. Somebody over the age of 16 must serve the documents at least 28 days before the hearing. Importantly, you cannot serve the documents yourself. You should then file an Affidavit of Service in the court, which proves that the documents have been successfully served.
Typically, divorce hearings are over quite quickly. However, before granting a Divorce Order, you will first need to satisfy the court of the certain conditions. Further information on How to Divorce page.