Generally, no. In New South Wales, you must be separated for a continuous period of at least 12 months before you can apply for a divorce, as outlined in section 48 of the Family Law Act 1975. However, there are limited exceptions, and understanding the requirements for separation is crucial.
What counts as separation?
Separation doesn’t necessarily mean living in different residences. Under section 49, you can be considered separated even while living under the same roof, or if one party continues to provide household services to the other. The key is that the marital relationship has broken down, and each party intends to live separate lives.
What if we haven’t been separated for 12 months?
If you haven’t reached the 12-month separation period, you cannot file for a divorce. The court will not grant a divorce order unless it is satisfied that the parties have separated and lived separately and apart for that duration, as per section 48(2). Attempting to do so will result in your application being dismissed.
Do children affect the 12-month rule?
Even if you meet the 12-month separation requirement, a divorce order won’t take effect until the court is satisfied that proper arrangements are in place for the care, welfare, and development of any children under 18, as detailed in section 55A and noted in subsection 98A(2A). The court must be confident that the children’s needs are being met post-divorce.
The practical difficulties of proving separation
Establishing the date of separation can be surprisingly complex. Disagreement about when the relationship truly ended is common, and evidence like separate finances, changes in social interactions, and communication patterns become vital. Without clear evidence, proving a continuous 12-month separation can be challenging and delay the process.
Questions to consider
- What evidence do we have to clearly demonstrate the breakdown of the marital relationship and the date separation occurred?
- How will we address the children’s arrangements to satisfy the court under section 55A?
- What are the potential implications of proceeding with a property settlement before the divorce is finalised?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.