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Separation and Divorce

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What is the difference between separation and divorce?

It is important to note that separation and divorce are not the same things. Divorce is obtained through a court order, whereas separation is not recorded. Thus, it is essential to keep note of your date of separation as it is required to be separated for 12 months before commencing divorce procedures.

What is required for a 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.

Our solicitors at the Australian Legal Practice have extensive experience and specialise in family law matters. We provide tailored advice and are equipped with the right knowledge to obtain the best outcome for you.

If your matter is urgent, call (02) 8084 9929 today to arrange a free initial consultation.


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