- Aussie Divorce
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- What is the difference between separation and divorce
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Under the Family Law Act 1975 (Cth), separation and divorce are distinct legal concepts:
1. Separation
Separation occurs when one or both partners decide to end the relationship and start living separately. Unlike divorce, separation:
✅ Can apply to married or de facto couples.
✅ Does not require legal action—you do not need to file any documents.
✅ Can happen even if both partners still live in the same home (separation under one roof).
✅ Begins when one party communicates the decision to end the relationship.
💡 For married couples, separation is a requirement before applying for divorce.
2. Divorce
Divorce is the legal termination of a marriage, recognized by the court. Under the Family Law Act 1975, a couple must meet the following conditions to apply for divorce:
✅ 12-month separation – The couple must be separated for at least 12 months to prove the marriage has irretrievably broken down.
✅ No-fault divorce – The court does not consider reasons for the marriage breakdown, only that the couple has been separated.
✅ Application to the Federal Circuit and Family Court of Australia (FCFCOA) – Either one or both spouses can file for divorce.
✅ Children under 18 – If the couple has minor children, the court must be satisfied that proper arrangements are in place for their care.
💡 Divorce does not settle property division or parenting arrangements—separate legal applications are required.
3. Key Differences Between Separation and Divorce
| Aspect | Separation | Divorce |
|---|---|---|
| Legal Status | Informal, no legal process required | Legally ends a marriage |
| Applies to | Married and de facto couples | Only married couples |
| Time Requirement | Can happen at any time | Requires 12 months of separation |
| Court Involvement | Not required | Must apply to FCFCOA |
| Financial & Property Division | Not automatically triggered | Separate legal process required |
| Child Custody & Support | Can be arranged informally or through legal orders | Separate legal process required |
4. What Should You Do After Separation?
After separation, it is important to:
✔️ Formalise parenting arrangements (if children are involved).
✔️ Sort out property and financial matters (apply for property settlement within 12 months of divorce or 2 years for de facto couples).
✔️ Consider a Binding Financial Agreement (BFA) to protect assets.
✔️ Apply for divorce if you wish to legally end the marriage.
Conclusion
- Separation is the informal end of a relationship and does not require legal action.
- Divorce is a formal legal process that legally ends a marriage and requires 12 months of separation before applying.
- Neither separation nor divorce automatically settles property or parenting disputes—separate agreements or court applications are needed.