How long do you have to be separated before divorce?
It’s a question we get often here at Hickman Family Lawyers. Let’s take a look at how long you have to be separated before you can legally divorce.
How Long Do You Have To Be Separated Before Divorce?
To ensure that a marriage has irretrievably broken down without any chance for a reconciliation, Australian Family Law requires a couple to have been separated for a minimum period of 12 months before applying for divorce.
If the marriage has lasted for less than 2 years, there is an extra requirement before you can apply for divorce. You need to attend marriage counselling with your spouse. You prove this by filing a certificate, signed by the counsellor, when you make your application.
It is highly recommended that you use this 12-month separation period to negotiate a property and/or a parenting settlement if you have children.
How Do We Prove We Are Separated If We Remain in The Same House?
As it is often not economically possible for a couple to afford two separate households straight away, and although it may not be an ideal situation, the Law allows such couples to be separated but still continue living in the same house. In legal terms, this is known as separation under one roof.
There are however, certain criteria that must be met to prove to the Court that you have been separated but still living in the same house.
This is done by supporting your divorce application with written affidavits providing the following information:
- Reasons for living under one roof and the date of the separation
- Proof that your bank accounts and finances have been separated and you no longer support each other (paying the rent or mortgage jointly is acceptable, but all other living expenses must be paid separately)
- You have separate bedrooms and do not cook, eat together or socialise in any way
- Letters from family members and close friends who have been informed that you are no longer living as a couple
- List of government departments you have notified of the changes to your marital or relationship status
After Separation, How Do I Apply for A Divorce?
Once you have completed your applicable mandatory separation period, you can apply to the Family Court for a divorce.
The main starting point for applying for a divorce in Western Australia is to file your application online.
Whilst separate to the divorce process, you can also consider attending Family Dispute Resolution, if you have children under 18 years old. You can also deal with property settlement at Family Dispute Resolution.
All these processes can be quite complex and come with their own set of rules and timelines, requiring professional legal and sometimes financial advice.
Furthermore, as each divorce has its own set of circumstances, it becomes more important to get the correct legal advice from a trusted family lawyer that specifically applies to your situation.
While filing your own application online may seem simple, some people may find navigating through the system and filling in the relevant forms daunting. There are many things that can so easily go wrong, jeopardising or delaying the application, which can prove costly, so getting legal advice before you start is often the best choice you can make.
Are There Time Limits When Applying for A Divorce?
There are time limits to consider to when applying for a divorce.
For married couples,property orders must be applied for within 12 months after the divorce is finalised. De facto couples have to apply within 24 months from the date of separation.
Reaching a property settlement may sometimes take some time, so it’s therefore advisable to start negotiating with your ex as soon as possible. It is also unwise to delay your property settlement for a later date, as the value of your assets are calculated at the time of application. That means that any asset you may acquire after your separation, will go into the asset pool, to which your ex may be entitled to a share.
Are you ready to separate or start divorce proceedings?
Book a free information call with our family lawyers in Perth now and find out what you need to consider when applying for a divorce.
