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Difference Between Legal Separation and Divorce
10 Aug 2023

What are the differences between legal separation and divorce in Australia?

By Family Lawyers Mackay, 10 Aug 2023
Divorce, separation and divorce

When a marriage faces challenges and couples decide to part ways, they often consider legal separation or divorce. While both options signify the end of the marriage, they have distinct legal consequences and financial implications. In this article, we will delve into the nuances of legal separation and divorce in Australia, providing a thorough understanding of each process, their differences, and how they affect the couples involved.

Differences Between Legal Separation and Divorce

Legal separation and divorce may appear similar, but they have essential differences that couples should be aware of before making any decisions.

Legal Separation in Australia:

Legal separation refers to a formal arrangement where a couple lives separately, but their marriage remains intact in the eyes of the law. It allows couples to have some time apart, evaluate their relationship, and decide if they want to reconcile or proceed with a divorce. During this period, the couple can address issues such as child custody, property division, and financial support through a formal agreement.

Divorce in Australia:

On the other hand, divorce marks the legal termination of a marriage. Once a divorce is granted, the marriage ceases to exist legally, and both parties are free to remarry if they wish. Divorce involves a more comprehensive process, and the court must be satisfied that the marriage has irretrievably broken down. It is essential to understand that divorce does not automatically address issues like property division and child custody, which need to be resolved separately.


By consulting one of our accredited family law mackay specialists.

Eligibility Criteria for Legal Separation and Divorce in Australia:

Before pursuing legal separation or divorce in Australia, couples must meet specific eligibility criteria.

Eligibility for Legal Separation:

There are no specific eligibility requirements for legal separation. Any married couple can choose to separate legally, regardless of the duration of their marriage or the reasons for the separation.

Eligibility for Divorce:

To be eligible for divorce in Australia, the following criteria must be met:

  • The couple must have been separated for at least 12 months.
  • There is no possibility of reconciliation.
  • Either spouse must be an Australian citizen, live in Australia, or regard Australia as their permanent home.

Process and Duration of Legal Separation and Divorce:

Process of Legal Separation:

The process of legal separation is relatively straightforward and does not require court involvement. Couples can draft a legal separation agreement with the help of solicitors or mediators, addressing issues such as property division, child custody, and financial support. After both parties finalize and sign the contract, it becomes legally binding.

Process of Divorce:

Obtaining a divorce in Australia involves several steps:

  1. Filing an Application: One spouse must file a divorce application with the Federal Circuit Court of Australia.
  2. Serving the Application: The application must be served on the other spouse, who then has the opportunity to respond.
  3. Hearing: If there are no complications or disputes, the court will grant a divorce after a minimum of one month from the date of application.
  4. Resolution of Other Issues: Divorce does not automatically resolve other matters such as property settlement and child custody. These issues need separate legal processes.

Duration of Legal Separation and Divorce:

Legal separation can be established relatively quickly, as it only requires drafting and signing an agreement. In contrast, obtaining a divorce typically takes around four months from the date of application.

Financial Implications of Legal Separation and Divorce:

Financial Implications of Legal Separation: Legal separation can affect the financial aspects of a marriage. However, the couple remains legally married, and their financial obligations towards each other continue. The legal separation agreement can outline how assets and debts will be divided, spousal support arrangements, and child maintenance, if applicable.

Financial Implications of Divorce: Divorce, being the termination of the marriage, involves a more significant impact on finances. After divorce, each spouse is free to manage their finances independently, and property settlements are finalized. Additionally, child support and spousal maintenance may be addressed through a separate legal process.

Impact on Children:

legal Separation on ChildrenImpact of Legal Separation on Children:
Legal separation allows parents to create a stable environment for their children while living separately. Child custody and visitation arrangements can be established through the separation agreement to minimize disruption and ensure the well-being of the children.

Impact of Divorce on Children:
Divorce can be emotionally challenging for children, but it can also provide a sense of finality to a difficult situation. Clear and amicable communication between parents during the divorce process is crucial to support the children through this transition.

Dealing with Shared Assets and Debts:

Dealing with Assets and Debts during Legal Separation: During a legal separation, couples can decide how to divide shared assets and debts through their agreement. It is essential to ensure that the arrangement is fair and legally sound.

Dealing with Assets and Debts During Divorce:

In divorce, property settlements are formalized and legally binding. The court considers factors like financial contributions, future needs, and the care of children when determining the division of assets and debts.

Relevant Statistics

As of my knowledge cutoff date is September 2021, divorce rates in Australia have shown a steady decline over the years. According to the Australian Bureau of Statistics (ABS), the crude divorce rate (divorces per 1,000 estimated resident population) was 1.9 in 2019. This rate has been decreasing since the peak of 2.8 in 1976, reflecting changing societal attitudes and behaviors toward marriage and relationships. For the most up-to-date divorce statistics, it is recommended to refer to the latest ABS reports.


By consulting one of our accredited family law mackay specialists.


Navigating the complexities of legal separation and divorce in Australia can be challenging, but understanding the key differences between the two is crucial for couples facing such situations. Legal separation offers an opportunity to reflect and work towards reconciliation, while divorce provides a formal end to the marriage. Individuals need to seek professional legal advice to make informed decisions that align with their unique circumstances. Remember, every situation is different, and what works for one couple may not be suitable for another.

Frequently Asked Questions (FAQs):

Is legal separation a prerequisite for divorce in Australia?

No, legal separation is not a prerequisite for divorce. Couples can directly proceed with a divorce if they meet the eligibility criteria.

Can we change the legal separation agreement later if needed?

Yes, the legal separation agreement can be modified if both parties agree to the changes. It is advisable to seek legal advice for any modifications.

Will a legal separation affect my immigration status?

Legal separation should not affect your immigration status, as it does not terminate the marriage.

Can we share a lawyer during legal separation or divorce?

While both parties can use the same lawyer, it is essential to consider potential conflicts of interest and seek independent legal advice when necessary.

What is the Average Timeline for Divorce in Australia?

The divorce process typically takes around four months from the date of application, but this can vary depending on individual circumstances.

Can we apply for a divorce if we have been separated for less than 12 months?

No, the law requires couples to be separated for at least 12 months before applying for a divorce.

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