Australian Family Law defines separation as the ending of a marriage or a de facto relationship. This is different from the date of divorce. While there is no need to officially register a separation, it is important to take note of the date of separation for your divorce and related property matters.

To obtain a divorce, you must have been separated for at least 12 months to prove your marriage has irretrievably broken down. Your separation will be assessed based upon the facts of your situation. The question of who is at fault for the marriage breakdown is not considered under Australian family law.

Separated couples do not have to divorce, but you should consult a divorce lawyer to understand the legal implications of remaining married. It is also important to understand that divorce is separate and distinct from property settlement and parenting arrangements after the breakdown of a marriage.

If you and your spouse have separated but are both living under the one roof, the Court will require evidence to prove that you were separated during this time. You will be required to prove that there has been a change in the marriage showing you and your spouse have separated. To meet this criteria, you and your spouse must:

• Show a change in sleeping arrangements;
• Reduce shared activities or family outings;
• cease performing household duties for each other;
• have separate bank accounts; and
• present yourselves as separated to family, friends and others.

If you have been married less than two years and want to apply for a divorce, you must attend counselling with a family counsellor to discuss the possibility of reconciliation with your spouse or, if you have not attended counselling, you must seek permission from the Court to apply for a divorce.