I Am Separating Can I Get Divorced Now?

After the parties separate, divorce is often the last thing that is contemplated. The initial steps in separation under the Family Law Act 1975 are that:

  1. The parties must have found that there has been an irretrievable break down of the marriage. This is a legal and technical term and essentially means that one or both parties have formed the view that there is no chance of reconciliation and this must be satisfied before proceeding.
  2. Parties should resolve any financial issues before proceeding to divorce as the filing of a divorce invokes a time limit in which to effect any type of property settlement and its preferable that property issues and financial arrangements are confirmed between the parties before the divorce application is filed.
  3. In filing an application for divorce, there needs to be 12 months from the date of separation. Separation is defined under the Family Law Act and there are a number of matters that can determine the date of separation including the actions of the parties, their financial arrangements, their intimate arrangements and how they hold out as a couple to other persons including family and friends.
  4. In many situations parties separate under the same roof and certainly an application for divorce can still be filed in this instance, however, there will need to be supporting evidence filed at the time of the divorce.

It is highly recommended that advice is obtained from a lawyer who specialises in family law before filing an application for divorce to obtain one off advice as to your legal rights and entitlements and to ensure that you are not creating or invoking time limits in relation to your overall property settlement once your application is filed.

Read our plain English handbooks

These fact sheets are designed to provide an overview of the relevant issues and systems so that you have a better understanding of the process.

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