Separation and divorce

Separation is recognised as the breakdown of a marriage partnership with no reasonable prospects of reconciliation. During separation, you may:

Separate without moving out

Continue to live under the same roof. The court will take into account living arrangements, financial arrangements and the division of household responsibilities to determine that separation has occurred.

Use joint bank accounts

Continue to share financial arrangements even if not living under the same roof.

Separating assets before divorce

Make decisions regarding the division of property and the care of children and pets. You do not need to wait for a divorce to make these arrangements. Pets are considered “property” and the court cannot make orders in relation to spending time with pets but you can do this
by private agreement.

Kiss and make-up clause

Undergo a “kiss and make up” period of up to three months without affecting the date of your separation. This means that you can suspend the separation while you attempt reconciliation. If reconciliation fails, the end date of separation is up to three months later than the original date.

When you separate, you can file an affidavit with the court to advise that you are separated. An affidavit is a written statement by a party or witness that is recognised by the court as a legal document. Your affidavit will contain details of why the relationship has broken down, your current living arrangements and anything else that helps the court determine that your separation is genuine. You may include affidavits from third parties to support your claim, and each party who is involved will receive a copy.

The legal system recognises divorce as:

• The permanent breakdown of a marriage
• A legal end to a valid marriage

To obtain a divorce, the court must be satisfied that you have met the following conditions:

• You need to provide a marriage certificate to prove that your marriage is valid. If your marriage certificate is in another language, you may provide a certified translation.
• You must be an Australian citizen, a permanent resident of Australia, or have lived in Australia for the twelve months prior to your divorce application.
• The court needs to be satisfied that the relationship breakdown is permanent. A period of twelve months’ separation is required before a divorce can be granted.

Before the court will grant a divorce, it needs to be satisfied that any children of the marriage are being adequately cared for. If the parties cannot reach an agreement, the court may make provision for the care of children with an interim custody hearing. This arrangement is not permanent, nor does it take into account all the details of the case.

Permanent arrangements for child custody are made at the final hearing. This hearing considers the case in more detail and determines the best care arrangements for the children.

You can apply for a divorce once you have been separated for a period of at least 12
months. If  you have been married less than two years and want to apply for a divorce, you
must either:

1. Attend counselling with a family counsellor or nominated counsellor to discuss the
   possibility of reconciliation with your spouse. OR
2. If you have not attended counselling, seek permission of the Court to apply for a
   divorce.