Pursuant to the Family Law Act 1975 (Cth) a party or parties to a marriage cannot apply for a divorce unless and until the parties are separated for 12 months.

Put somewhat simplistically, there are two ways to apply for a divorce, namely, a joint application for divorce (where both parties sign and agree to the divorce) and a sole application for divorce (where only one party signs and applies for divorce).

Separated under the same roof

In some instances, parties, despite the fact that they are separated, remain living “under one roof”, that is, living together.

In the event the parties were, at any stage, separated under one roof during the 12-month period of separation, the party or parties applying to the court for a divorce must file an affidavit in support of the divorce application in which information such as an including the following must be provided to the court:

  • Any changes in the sleeping arrangements of the parties (e.g. no longer sleeping in the same bed).
  • That the parties ceased or reduced family activities or family outings.
  • Whether the parties have told friends and family that you are separated.
  • The living arrangements of any children under the age of 18 for the period during which the Parties were separated under one roof.


If there are no children of the marriage under the age of 18 then neither party to the marriage must attend the court hearing, whether the Application for Divorce is made is a sole or joint application. Parties to an Application for Divorce do not have to attend the court hearing, even where there are children of the marriage under the age of 18, if the application is a joint application. If a sole Application for Divorce is made then the party making the application must attend a court hearing if there are children under the age of 18.

Divorce and property settlement

It should be noted that once a divorce is granted the parties, or either of them, in the ordinary course, must make an application for property settlement or spousal maintenance within 12 months of that date upon which the divorce is ordered by the court.

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