Divorce gives you the legal finality of ending a marriage and the ability to remarry, while separation simply acknowledges that the relationship has broken down, but still legally married.
What to Know About Separation and Divorce in Australia
In Australia, a relationship can end in two ways: through separation or divorce. Both de facto relationships and marriages end in separation, but the law treats them differently. Marriage is a legal status, not just a relationship status. That means you can be separated and living entirely separate lives, yet still remain legally married until a divorce is finalised.
In short, divorce provides the legal finality of ending a marriage and the ability to remarry, while separation simply acknowledges that you and your ex-partner are no longer living as a couple. Understanding the primary differences is important because each option carries different legal implications, time limits and responsibilities.
This article outlines how separation and divorce work under Australian law, covering trial separations, separation under one roof, financial arrangements, parenting plans and estate issues.
Trial separation before divorce
Many couples undergo a trial separation before making a decision about the future of their relationship. During this separation period, parties may live apart or, at times, remain in the same home while attempting to reassess the relationship.
A trial separation has no formal legal process and does not change your legal marriage status. However, it can affect matters like child care arrangements, child support and living arrangements if children are involved. The separation date is also important, as it can later determine time limits for property and financial matters.
Separation while living under one roof
Australian law recognises that you can be separated even if you continue living in the same home. This is often referred to as separation under one roof. Couples may do this for financial considerations, for the sake of any children involved, or due to other practical reasons.
The separation process in this situation requires clear evidence of changed living arrangements, separate finances and communication that the relationship has ended. Government agencies such as Services Australia may require proof before approving certain financial benefits or social security benefits.
Separation while waiting for a divorce
The law requires at least 12 months of separation before a divorce application can be filed. This is to demonstrate that the marriage has broken down irretrievably. During this separation period, couples may continue to negotiate parenting arrangements, financial affairs and property settlements.
Because the overall divorce process takes time, many couples begin resolving property and financial matters before the divorce proceedings are complete. This can reduce stress during the court process and help both parties move forward more smoothly.
Extended separation without divorce
Some couples remain separated for years without ever pursuing a divorce. While this is a personal choice, there are legal implications to be aware of. A person who remains married cannot remarry without first obtaining a divorce order. Extended separation may also complicate estate planning, inheritance rights and superannuation claims.
For instance, under Australian law, a former spouse may still be entitled to certain financial benefits or inheritances if proper arrangements are not made. Obtaining legal advice is strongly recommended if you are separated long-term without divorce.
Legal separation and divorce
The separation process and the divorce process are not the same. Separation is simply the decision by one or both parties to live separate lives, and it does not require a formal process or court order. Divorce, however, is a formal legal process that ends the legal marriage.
Divorce proceedings require a divorce application lodged with the Federal Circuit and Family Court of Australia, proof of a 12-month separation period, and evidence of proper arrangements for children. Property can be addressed at any time before divorce, and within one year of the date of divorce.
Separation, on the other hand, allows you to address property and financial matters, parenting plans and other family law matters without needing a divorce order first. You can apply for parenting orders and spousal maintenance and participate in mediation or Family Dispute Resolution during the separation period.
Separation and getting back together
If separated couples reconcile, the law allows them to continue their marriage. However, if they separate again, the separation date may reset.
Separation and family law time limits for property settlement
While married couples planning to separate can negotiate and finalise a property settlement at any time, certain rules apply.
- While still married: Couples can reach a separation agreement and finalise property and financial matters even before a divorce order is made.
- After separation: You can apply to the court for property and financial orders as soon as separation occurs.
- After divorce: Once a divorce order is granted, there is a strict 12-month limit to bring an application for property settlement or spousal maintenance, unless the court grants permission.
This means it is often practical to begin addressing financial affairs and property settlement early in the separation process, but the process should never be rushed. A good Family Lawyer can help you to determine the best course of action in your circumstances.
Separation and Services Australia
Separation affects how government agencies assess entitlements. Services Australia requires proof of separation to update any government payments and Child Support assessments. Separation can also affect access to social security benefits, tax offsets and other financial benefits.
You may need to show evidence of separate finances, different living arrangements, or a formal separation agreement. This helps government agencies calculate Child Support, determine eligibility for payments, and ensure that financial arrangements are fair.
Estate law: Separation and divorce
Separation and divorce carry significant estate planning consequences. If you are only separated, your former partner may still have rights under your Will or superannuation death benefits. Divorce automatically revokes certain provisions in a Will relating to the former spouse, but not all.
During separation, it is essential to update Wills, Powers of Attorney, and superannuation nominations to reflect new financial arrangements and decision-making processes. A Family Lawyer or Estate Lawyer can assist with these legal obligations.
Remarriage
Only divorce ends a marriage legally and gives you the right to remarry. If you remain separated without a divorce, you cannot legally marry another person. Entering a second marriage without a divorce is not valid under Australian law.
Key differences summary
Divorce
- Ends the marriage legally: Divorce is the formal dissolution of a marriage under the Family Law Act 1975. Once granted, you are no longer legally married.
- Allows remarriage: Only divorce gives you the legal right to remarry.
- Triggers time limits: Once divorced, you generally have 12 months to apply to the court for property settlement or spousal maintenance (unless you get special permission).
- Court order: Divorce requires an application to the Federal Circuit and Family Court of Australia, showing at least 12 months of separation.
Legal separation
- Does not end the marriage: You remain legally married, even if you live apart.
- No right to remarry: Because the marriage is still valid, you cannot remarry until you obtain a divorce.
- Property and parenting orders still possible: You can apply to the court for parenting orders, spousal maintenance, and property settlement without being divorced.
- No automatic time limits: Unlike divorce, separation alone does not trigger the 12-month deadline for financial applications (unless you are leaving a de facto relationship).
Final thoughts on divorce and separation in Australia
The primary differences between legal separation and divorce in Australia lie in the finality of the legal process. Separation is a personal decision that marks the end of a relationship, but it does not change your legal marriage status. Divorce is the formal legal process that dissolves a marriage, allowing remarriage and setting time limits for property and financial matters.
Understanding the legal implications of both options is important for anyone addressing family law matters. Separation and divorce affect parenting arrangements, financial considerations, estate planning and social security benefits. Your individual circumstances and family law issues will determine which steps are necessary.
If you are dealing with separation, family violence, domestic violence, child custody or financial arrangements, it is wise to seek legal advice. An experienced family lawyer can guide you through the entire process, help with dispute resolution, and ensure that the best interests of any children involved are protected.
Need help addressing legal matters related to divorce and separation?
If you are considering separation or divorce, it is important to obtain legal advice specific to your situation. A Family Lawyer can help you understand your legal obligations, protect your financial affairs and assist with parenting arrangements. Whether you are negotiating with your former partner, addressing family law disputes or managing the formal legal process of divorce proceedings, professional legal help is essential.
Contact one of Tonkin Legal’s experienced Family Lawyers today to discuss your separation agreement, financial considerations, and other related family law matters. Taking early steps can make the decision-making process more transparent and provide security for both you and your family members, helping you move forward with certainty.