If you have just separated, one of the first questions is usually how long you have to wait before you can get divorced. The answer is simpler than most people expect, and it changed for the better in 2025. Here is what the law actually requires, how the timing is counted, and what a divorce does and does not do for you.
How long do you have to be separated first?
The only ground for divorce in Australia is that the marriage has broken down for good. You show that by living separated for at least 12 months before you apply. Fault does not come into it. This comes from section 48 of the Family Law Act 1975.
In practice that means 12 months and one day, because the day you separate does not count. If you separated on 7 November, you can file from 8 November the following year. Getting the date right matters, because filing even a day early means the application can be rejected and you have to start again.
The court also will not grant a divorce if it thinks there is a real chance you will get back together. The separation needs to be genuine and settled, not a temporary cooling-off. For most couples this is straightforward, but it is the reason the date you treat as your separation date carries weight.
What changed for short marriages in 2025?
Until 10 June 2025, couples married for less than two years had to take an extra step. They had to file a certificate saying they had considered counselling, or ask the court for permission to apply. That requirement is gone, and the same rule now applies to everyone.
The change came from the Family Law Amendment Act 2024, which repealed sections 44(1B) and 44(1C) of the Family Law Act. So if you married recently and the relationship has ended, you no longer have to prove you tried counselling or seek the court's leave first.
The reason for the change is practical. The old rule added cost, delay, and an extra hurdle at a hard time, and it could be unsafe where there had been family violence. Removing it puts everyone on the same footing: the only timing rule left is the 12-month separation, whatever the length of the marriage.
What does being separated actually mean?
Separation is not just moving out. The law treats you as separated when one of you decides the relationship is over, acts on that decision, and tells the other person. You can be separated even if your former partner does not agree with the decision.
Section 49 of the Act sets this out. The decision has to be communicated and acted on, not just held privately. In plain terms, there has to be a point where the relationship ended in substance and at least one of you made that clear.
It is possible to be separated while still living in the same home, for money, parenting, or other practical reasons, although that situation needs extra evidence when you apply for divorce. We will cover separation under one roof in its own article. The key point here is that separation starts when the relationship ends in substance, not on the day someone packs a bag.
Does trying to reconcile reset the clock?
Not if it is short. If you get back together once for up to three months and then separate again, the law lets you add the two separate periods together. The time you spent back together does not count toward the 12 months, but it does not wipe out the months you already have.
This sits in section 50. Say you separate, try again for two months, then separate for good. You do not start from zero. The two months back together are set aside, and the separation time on either side is joined up toward your 12 months.
There are limits. The rule covers a single attempt of up to three months. A second attempt, or one that runs longer than three months, resets the clock and you count again from the later separation. If you are unsure whether a period of getting back together affects your timing, it is worth checking before you file rather than after.
Who is eligible to apply in Australia?
You can apply for a divorce in Australia if you or your former partner is an Australian citizen, lives here and treats Australia as home, or has lived here for at least the 12 months before applying. You will also need a copy of your marriage certificate.
This is the jurisdiction rule in section 39 of the Act. Only one of you needs to meet the test, not both. A marriage from overseas is generally recognised here, so you can usually divorce in Australia even if you married in another country, as long as that connection to Australia is there.
If your marriage certificate is not in English, you will need a translation to file with it. If you cannot locate the certificate, you can usually obtain a copy from the registry in the country or state where you married before you apply.
Does a divorce sort out property and parenting?
No. A divorce only ends the marriage itself. It does not divide your property, deal with superannuation, or set the arrangements for your children. Those are three separate matters, and a divorce order says nothing about any of them, even when the paperwork feels final.
This is one of the most common and most costly misunderstandings in family law. People assume the divorce deals with everything, then find they are legally single but still have no agreement about the house, the super, or who the children live with. The divorce and the practical sorting-out are two different jobs, and you handle them on separate tracks.
That also means you can deal with parenting and property without waiting for a divorce at all, and in many cases you should not wait. The next section explains why.
Why you do not need to wait for a divorce
You do not have to be divorced, or even eligible to apply yet, before you sort out parenting and property. You can start as soon as you separate. Waiting can actually cost you, because some deadlines run from the divorce, not from the day you separated.
Once a divorce becomes final, a married couple has only 12 months to apply for property orders. After that you need the court's permission, which is not guaranteed. De facto couples have their own deadline of two years from the end of the relationship. Either way, leaving property unresolved while time passes can quietly close a door that was open.
For most people the better path is to settle parenting and property by agreement, rather than running everything through a courtroom. That is what Family Dispute Resolution is for. The practitioner assigned to your matter helps each of you shape and reality-check the proposals you put to each other, so you reach arrangements you both understand and can live with. If you want to see how that works, start with what FDR is and how it applies to a financial settlement. A Free Discovery Call is the simplest first step.
When does the divorce actually take effect?
A divorce order does not take effect the day the court makes it. It becomes final one month and one day later. Until then you are still legally married, which matters if you are planning to remarry or you need your status settled for another reason.
The timing comes from section 55 of the Act, and you can only remarry once the order is final under section 59. If you have a wedding date in mind, count back from it: you need the order made, then the month-and-a-day wait, before a new marriage can go ahead.
A divorce order can also affect other things, such as a will, so it is worth knowing the date it becomes final rather than assuming it is the day of the hearing. If any of that timing is tight for you, sort the sequence out early, well before the dates start to matter.