Divorce requires more than simply counting 12 months
Under the Family Law Act 1975 (Cth), the Court generally must be satisfied that the marriage has broken down irretrievably and that the parties separated and lived separately and apart for a continuous period of at least 12 months immediately before filing. A dispute about when separation began may lead to requests for further evidence, an adjournment or an unsuccessful application.
Why is the date sometimes disputed?
One spouse may believe the relationship ended while the other understood that reconciliation was continuing. Couples may remain at the same address, share expenses or never clearly communicate an intention to end the marriage. Living in separate homes is not essential, but intention and actual circumstances matter.
Separation under one roof
Where spouses remain at the same address after separation, further affidavits may be required. Relevant matters can include sleeping arrangements, household tasks, finances, social activities and whether friends, family or agencies were told about the separation.
How a timely declaration may help
A clear, contemporaneous record of the intention to end the marriage and the asserted date of separation, communicated in a verifiable way, may assist as part of the evidence. Retaining the declaration, sending records, delivery information and any response can help explain the chronology. Solicitor-assisted delivery may help preserve a clearer record of steps actually taken.
A declaration is not conclusive proof
There is no general requirement to sign a separation declaration before applying for divorce. A unilateral declaration does not itself establish the legal separation date or bind the other spouse. The Court considers the evidence as a whole, and a declaration may still be challenged. It must accurately reflect the facts.
What if the couple briefly reconciled?
Section 50 of the Family Law Act permits aggregation of periods of separation in specified circumstances where resumed cohabitation totals no more than three months. The resumed cohabitation period itself does not count towards the required 12 months. Dates and circumstances need careful assessment.
Practical steps
Communicate the separation decision clearly, record accurate dates, and preserve relevant communications and evidence about living and financial arrangements. If living under one roof, document actual changes. Do not backdate or invent evidence; obtain advice about how to present existing records truthfully.
How Herald Legal can assist
Our optional solicitor-assisted separation declaration service can include identity verification, legally compliant witnessing where applicable, sending from the firm's email address, attempting telephone confirmation and an affidavit recording the steps actually taken. It does not guarantee agreement by the other spouse or acceptance by the Court.
The takeaway
The separation date is a foundational fact in a divorce application. Timely, accurate records can help explain when the marital relationship ended and reduce avoidable evidentiary difficulties later.
This article provides general information, not advice on individual circumstances. The Court determines separation and divorce eligibility on the facts and evidence.
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FCFCOA: Applying for divorce · FCFCOA: Separated under one roof