Separation vs Divorce: What’s the Difference?

Clarity Lawyers Blog Family Court Australia 2

While separation and divorce might sound similar, they have distinct meanings in Australian family law. Understanding these differences is crucial when navigating the end of a relationship. It is crucial to be aware that a property settlement or making arrangements for children can happen immediately upon separation and you do not need to wait for the divorce. You should seek legal advice at separation even if you are amicable and do not wish to do a property settlement straight away.

Separation: The Breakup

Separation signifies the breakdown of a marriage or de facto relationship. It’s the point where you’re no longer considered a couple, even if you still live under the same roof. There might be a mutual agreement, or one partner might inform the other.

Here are some signs of separation, even when cohabiting:

  • Sleeping in separate bedrooms
  • No longer sharing household duties
  • Not participating in social activities together
  • Separate finances
  • Informing others about the relationship ending

De Facto Relationships and Separation

De facto couples (living together in a committed relationship) don’t go through divorce. However, separation is still relevant. Similar to married couples, de facto partners have a two-year window after separation to deal with property and financial matters through the courts. If this timeframe is exceeded, an exemption application to the court might be necessary and there is no guarantee it will be granted.

Separation and Divorce: The Link

Divorce legally dissolves a marriage. To obtain a divorce, you need to prove a 12-month separation period, demonstrating your marriage has irretrievably broken down. Even if you share a living space, you must show you haven’t lived together as a couple throughout that period. Evidence like separate finances and bedrooms can be helpful.

For marriages under two years, attending counseling before applying for divorce is usually mandatory. Exceptions can be made for cases involving family violence.

The Divorce Process

The Family Law Act 1975 governs divorces, processed through the Federal Circuit and Family Court. It’s a relatively straightforward procedure. You can file an application jointly or individually. Filing fees apply, with potential reductions for concession card holders..

The process involves serving the application on your spouse, either through a lawyer or a process server. Opposition to an application is uncommon, usually centred on contesting the 12-month separation period or jurisdiction issues.

Court Hearings and the Divorce Order

Depending on the circumstances, attending a court hearing might not be necessary. Joint applications or applications involving adult children (over 18) typically don’t require your presence. However, sole applications with minor children (under 18) usually involve a hearing which is usually conducted over the telephone rather than in person.

The court grants a divorce order during the hearing, but it takes effect one month and one day later. Importantly, this order doesn’t address property or parenting arrangements, which require separate legal processes.

Seeking Help

If you need guidance on separation or divorce, contacting the family law experts at Clarity is recommended. We can help you understand your rights and navigate the legal processes involved.

Subscribe for all of the latest resources

Rli Samantha@2x
Samantha Miller

Samantha has been a lawyer since 2001 having followed in the steps of her father, grandfather, great-grandfather and great-great-grandfather. No one can say she didn’t know what she was getting into!

Initially admitted in 2001 as a solicitor in NSW and Australia, Samantha moved to the UK where she was admitted as a solicitor in England and Wales in 2002. After working in several different areas of the law in large London firms, she determined that family law was her calling and hasn’t looked back.


Oap Close
Not in Newscastle, no problem
online consulations available

Share This

Select your desired option below to share a direct link to this page