The fastest way to obtain a divorce in NSW is to file an application immediately after you have lived separately and apart for a continuous period of 12 months. The primary complication is ensuring that your separation meets the strict legal definition to avoid the application being rejected.
The 12-month requirement
Under section 48, a divorce order is generally only made if the court is satisfied the parties separated and lived separately and apart for at least 12 months immediately before the application is filed. This is a mandatory waiting period that cannot be bypassed to speed up the process.
Proving the marriage has broken down
An application must be based on the ground that the marriage has broken down irretrievably under section 48(1). In practice, the 12-month separation period serves as the primary evidence that this breakdown has occurred.
Brief reconciliations
If parties resume cohabitation for a period of 3 months or less and then separate again, section 50 allows the separation period to potentially continue without being reset. This means a short-lived attempt to save the marriage may not necessarily delay your ability to file for divorce.
The “separately and apart” ambiguity
The most difficult part of the process is proving exactly when the separation began, particularly if parties continued to live under the same roof for financial or parenting reasons. Determining the precise date the marriage broke down can be a point of significant dispute.
Questions to consider
- Does our current living arrangement legally constitute “living separately and apart”?
- Will a brief attempt at reconciliation reset the 12-month clock for my application?
- Have we finalised our property settlement and parenting arrangements before filing for the divorce order?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.