No, a divorce cannot be granted in Australia until a couple has been separated for at least 12 months and 1 day. This timeframe is a strict legal requirement under Section 48 of the Family Law Act 1975 (Cth), designed to prove that the marriage has broken down irretrievably — the only valid ground for divorce in Australia.
While the divorce application must wait until the separation period is complete, individuals can still take urgent legal steps beforehand, including securing parenting orders, resolving property matters, and obtaining protection against family violence where necessary.
Why Does the 12-Month Rule Exist?
The 12-month separation rule exists to ensure that a marriage has truly broken down before the Court grants a divorce. Under Section 48 of the Family Law Act 1975 (Cth), Australia follows a no-fault divorce system, meaning the reason for the breakdown is irrelevant — what matters is whether reconciliation is genuinely unlikely.
The mandatory separation period provides evidence of the irretrievable breakdown, encourages thoughtful decision-making, and gives both parties time to stabilise arrangements for children, finances, and living situations before finalising the legal dissolution of marriage.
Can the Court Shorten the Separation Period?
No. The Federal Circuit and Family Court of Australia (FCFCOA) has no discretion to reduce or waive the 12-month separation requirement — even in cases involving:
- Family violence or safety risks
- Immediate relocation or remarriage plans
- Severe financial hardship
- Total loss of communication between parties
Instead, individuals can and should seek interim legal remedies, including:
- Family Violence Orders through State/Territory courts
- Urgent parenting orders to protect children
- Spousal maintenance for those unable to meet reasonable expenses
- Property settlement negotiations to secure asset interests
LegalFinda can assist individuals in finding a good family lawyer to obtain protective measures without delay.
What Can Be Done Before the 12-Month Separation Period Ends?
Before the 12-month separation period ends, couples can begin preparing essential legal and practical arrangements even though a divorce application cannot yet be filed. This includes documenting the official separation date, negotiating or formalising parenting plans, resolving property and financial matters through Consent Orders or a Binding Financial Agreement, and gathering required paperwork for the eventual divorce application. Individuals experiencing family violence may also take urgent legal action to secure safety and support while waiting for the separation period to be satisfied.
Separation Under One Roof: Still Eligible
Couples may remain in the same residence due to financial limitations or parenting needs. In such cases, separation must be demonstrated through evidence such as:
- Ceasing shared meals and social activities
- Maintaining separate bedrooms
- Independent financial management and payment of expenses
- Statements from friends or family to verify separation
The Court requires affidavits explaining the timeline and circumstances of separation in these matters.
Short Marriages and Additional Requirements
If the marriage has lasted less than two years, the Court typically requires:
- Attendance at marriage counselling
- A Court-approved exemption supported by affidavit (e.g., family violence, health barriers)
This requirement strengthens the Court’s scrutiny of early divorce applications.
Family Violence and Urgent Protections
Where safety is a concern, the law provides powerful safeguards without waiting for eligibility to apply for divorce:
- Immediate exclusion of a violent party from the home
- Orders restricting contact or requiring supervised time with children
- Emergency spousal maintenance to ensure financial stability
A lawyer sourced via LegalFinda can assist with urgent filing and representation to prioritise safety and security.
Frequently Asked Questions
A brief overview of common concerns relating to accelerated divorce timelines:
Can separation be recognised while still living together?
Yes. Evidence must show the marital relationship has ceased on a practical and emotional level.
Can property settlement occur before divorce?
Yes. Financial and property orders can be finalised months before divorce is granted.
Can my spouse prevent the divorce filing once 12 months has passed?
No. A sole application may proceed, provided service requirements are met.
Can I remarry before the divorce is granted?
No. Divorce must be finalised before a new marriage ceremony can lawfully occur.
What if my partner refuses counselling for short marriages?
An exemption may be available when counselling poses risk or is impractical.
Conclusion
Although the 12-month rule is strict and cannot be avoided, separating spouses do not need to wait to protect their legal and financial circumstances. Proactive legal advice and early documentation strengthen entitlement claims once the divorce becomes eligible.
LegalFinda connects individuals with verified Australian family lawyers who specialise in property settlements, parenting disputes, and safety considerations during the mandatory separation period — ensuring the strongest legal position from day one.
