What is the difference between separation and divorce?

The Family Law Act 1975 (Cth) (‘The Act’) covers all aspects of marriage dissolution. To begin the divorce process, several procedures must be satisfied.

For example, section 39(c) under the Act stipulates that one of the parties to the marriage at the time of the divorce application must be:

• an Australian citizen;
• domiciled in Australia; or
• ordinarily resident in Australia and has been so resident for one year immediately preceding that date

   

If citizenship is satisfied, divorce can be applied for as either a sole application or joint application to the Federal Circuit and Family Court of Australia (Division 2) (FCFCA (Division 2).

In Australia, fault is not a necessary factor in determining a divorce. Instead, the criteria laid out in section 48 of The Act notes the three elements required:

1. ‘The marriage has broken down irretrievably.’
2. The parties separated and, after that, ‘lived separately and apart for a continuous period of not less than 12 months.’
3. No ‘reasonable likelihood of cohabitation being resumed.’
   
   

Additionally, if you have been married for less than two years, there is also a requirement that you seek counselling and obtain a certificate.