How Long Must I Be Separated to Get a Divorce?

The simple answer to the question, “How long must I be separated to get a divorce?” is that the law requires a married couple to be separated for a period of 12 months. But determining for how long a couple has been separated, in accordance with law, can sometimes created problems in Divorce Applications.

Section 49 of the Family Law Act 1975 explains that separation may be held to have occurred even if cohabitation was brought to an end by the action or conduct of only one of the parties, and even if the parties continued to reside in the same household or rendered some household services to the other. Often, separation occurs without either party leaving the matrimonial home – this is known as “separation under one roof”. For separation to be established, it is essential to prove that at least one party had an intention to terminate the marriage and communicated this intention to the other party directly or indirectly.

Where separation took place wholly or partly while the parties were living under one roof, corroborative evidence by a witness must be provided. This is usually a neighbour, friend or relative who is familiar with the circumstances in which the parties have been living.

Where the separation date is disputed, the Court may consider many factors surrounding the nature of the marriage including:

1. Dwelling under the same roof: While it may be that this factor is likely to have considerable importance, the law has emphasised that this factor is alone not decisive, and that its importance will vary from case to case.
2. Intimacy: Sexual relations no longer existing between the parties may be a factor suggesting that the parties have separated. However several cases have held that the parties have “separated” despite the occurrence of acts of intimacy.
3. Mutual society and protection: Payments by one party to the other party do not necessarily indicate that the marital relationship still exists. Such payments may be made as a matter of habit or convenience, or because the person making the payments considers that the other party would be likely to obtain a maintenance order if the payments were not made “voluntarily”.
4. Nurture and support of children of the marriage: Parties may remain living together after the marital relationship has ended merely so that the children have minimum disruption.
5. Communication of intention to separate finally: In some cases one party will make it clear to the other by words or actions that he or she is intending to bring about the termination of the marriage. Sometimes however the question arises as to whether the parties can be considered to have separated when one party believes that the marriage is still on foot and the other has not communicated to the contrary.
6. Resumption of cohabitation: Cohabitation is not resumed merely by casual encounters, even if acts of intimacy occur. There must be an intention to resume cohabitation. Under section 50 of the Family Law Act 1975, if the parties resume cohabitation on one occasion, but, within a period of three (3) months after the “resumption of cohabitation”, they again separate, then the periods of separation before and after that short resumption of cohabitation may be added together to make up the period of 12 months separation that is required for making an Application for Divorce.

If you are making an Application for Divorce but have been married for less than two (2) years, under section 44(1B) of the Family Law Act 1975, you are required to file a certificate confirming that you have considered reconciliation with the assistance of a marriage counsellor, unless the Court is satisfied that there are special circumstances by reason of which an Application for Divorce should proceed, despite counselling having not taken place.

The brief explanation above regarding the requirement to be separated for 12 months before applying for a divorce shows that sometimes, determining whether the parties have in fact separated and for how long, is not always a simple task.

Our divorce lawyers are experienced in dealing with Divorce Applications that are not straightforward, having assisted hundreds of clients over the years. We can help you, too.

We have offices in Sydney, Chatswood, Parramatta, Sutherland and Wollongong.