Separation vs Divorce - What's the Difference?

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If you’re living in Australia and in a relationship, you may have wondered from time to time about what the difference is between separation and divorce. Here is a summary of what they are, who they apply to, and what the legal requirements are for each one.  

Before getting into it, it’s important to note that in Australia, the Family Law Act 1975 (Cth) gives the Federal Circuit and Family Court of Australia the authority to deal with issues that arise concerning children and property after the end of a relationship, regardless of whether  it is a relationship where the parties are married or they are in a de facto relationship.  

First things first – for there to be a separation or a divorce, you must first be in a relationship or married. While this seems obvious, there are A LOT of times when the Court has to figure out whether the people were even together in the first place!  


Any one in a relationship can separate. When we are talking legal definitions, separation means that a de facto or marriage relationship has broken down and considered to have ended. For this to occur, the law says the parties must live separately and apart.  

This can be:  

  • Living in separate homes  
  • If continuing to live in the same home, in separate rooms 
  • Conducting your day to day life as though the relationship has ended 


If you are going to keep living in the same house (as many people do), it needs to be clear that the relationship is over.  

Do you need to do anything to be legally separated?

Generally speaking, the answer is no. It is enough that one person ends the relationship and has been communicated to the other.  

There are some circumstances where a Separation Declaration may be needed. These are usually only needed when there is an existing document known as a  “Binding Financial Agreement” between the parties, or complicated financial arrangements in relation to Superannuation.  

What happens after we are separated?

Once you and your former partner have separated, you will need to go through the process of figuring out who gets what property, and if you have children together, how you will take care of them.  

Some people are able to sort these things out without any outside help. Most people need the help of a lawyer at some stage.  

Once an agreement is reached about how you want to handle things, you can have that agreement ratified by the Federal Circuit and Family Court of Australia. Again, a lawyer will be able to help you with this.  


Divorces are only relevant to people who have been married. While a marriage is a romantic relationship, it is also a legal relationship – similar to a contract. The people who got married entered into an agreement that they would have a binding, legal connection through their marriage. A divorce is the only way to end that legal relationship while both people are alive.  

Married people can be separated at any point in time, and technically can be separated their whole lives while still legally being married to each other.  

How to get a divorce

To get a divorce, you need to make an application to the Federal Circuit and Family Court of Australia.  

To make the application you must:  

  • Be separated for more than 12 months 
  • Provide the person you are divorcing with a copy of the application 
  • Be able to prove that you have provided them with the application.  


While a person can make an application for a divorce without a lawyer, it is definitely easier to get a lawyer to do it for you.  

Why divorce is important

Without a divorce, you are still legally married to the person that you have separated from.  

This is pretty important, because being married can have an impact on:  

  • Your ability to take out a loan  
  • Your ability to own property without it being considered property of a marriage  
  • Your ability to protect yourself from your spouses debts  
  • Who gets to make decisions for you about your health in the event of a serious accident  
  • What happens to your property when you die  
  • Whether or not you can get married again.  


It’s always important to chat to a lawyer about what you need to do after you have separated to ensure that you have properly ended your marriage and severed the legal ties that it creates.  

Key takeaways!

  • Separation is the breakdown of a relationship 
  • De facto or married couples can separate 
  • The definition of separation is that the parties live separately and apart, that they and other people consider them to no longer be a couple 
  • You do not need to take any formal steps to be separated 
  • Marriage is not just a romantic relationship – it is a binding legal relationship 
  • Separation does not end the legal relationship of marriage 

Do you have some questions about separation or divorce? Kelly and her team can help. Give them a call on 1300 444 LAW.