When Can You Apply for a Divorce?
To be eligible to apply for a divorce, you or your spouse must have been separated and living separately for a minimum of twelve (12) months, with no reasonable likelihood of resuming married life.
Recent changes to Australia’s family law, effective 10 June 2025, aim to make divorce proceedings fairer and more reflective of modern families. Couples married for less than two years no longer need a counselling certificate, and sole applicants no longer need to attend the court hearing if the respondent does not object, even when children under 18 are involved.
What If you are Separated but Still Living Together?
It is possible to be separated even if you are still living together. This can occur for a variety of reasons, often for the sake of the children. If you live under the same roof during all of or part of the minimum twelve’ month separation period, you will need to file an Affidavit (a sworn statement) from yourself and at least one other witness, who can verify the separation
What Should the Affidavit Contain?
Your Affidavit should address changes that have occurred between you and your spouse before and after separation. This is to show that even though you’re living in the same residence, your relationship doesn’t reflect a marriage. You can include the following matters in the Affidavit:
- Do you have separate sleeping arrangements?
- Has your sexual relationship ceased?
- Have you changed the domestic tasks or household responsibilities you perform for each other since separating?
- Do you have separate financial arrangements such as individual bank accounts?
- Have you stopped attending social functions or activities together?
- Why are you still living separated under one roof? For example, financial pressures or stability for children of the marriage.
- What arrangements are in place for children under 18 years of age?
- Have you informed any government departments such as the Department of Human Services – Child Support of your separation?
- Do you think there will be a change to the living arrangements? If so, when will this occur?
Filing the Affidavits
The Affidavits are filed with the Divorce Application, Marriage Certificate, documents establishing citizenship (unless a citizen by birth) or for non-citizens, an Affidavit establishing that one of the parties is domiciled and/or ordinarily resident in Australia.
After the application for divorce is filed, the other side may file a Response to Divorce within 28 days, if they disagree with any of the facts set out in the Affidavit and Application for Divorce. The court will process the Application and arrange a hearing date thereafter.
If the application is uncontested (no Response filed or the facts are accepted), the Court may approve the divorce without a hearing. The divorce will then become final one month and one day after the Court issues the order.
Alternatively, if your spouse contests the application, the Court may schedule a hearing to consider the disputed facts before deciding whether to grant the divorce.
Contact us
Family Law is a complicated area, and if you and your partner are going through a separation or divorce, we recommend seeking legal advice to ensure the best outcome. If you need direction regarding a relationship separation, please do not hesitate to contact Etheringtons Family Lawyers in North Sydney on 9963 9800 or via the contact form here.