A common question at the start of a separation is how soon a divorce can go through. The short answer is that you generally need to have been separated for twelve months. For a business owner, though, the more important point is that the financial side does not have to wait that long, and in most cases it should not, because leaving assets unresolved can create its own problems.
The 12-month rule
To apply for a divorce in Australia, you must have been separated for at least twelve months, which shows the court that the marriage has broken down irretrievably. The divorce itself is a relatively administrative step once that period has passed and the paperwork is in order. It ends the marriage, but it does not, on its own, divide property or settle arrangements for children.
Separation under one roof
Separation can be established even where both people continue to live under the same roof, provided the circumstances can be properly shown. Couples often stay in the same home for financial or practical reasons, and that does not prevent the twelve-month clock from running. In that situation you usually need supporting evidence, such as a statement from an independent person, to show you were genuinely living separately.
If you have been married less than two years
Where a couple has been married for less than two years, they will usually need to attend counselling to consider reconciliation before applying, or seek the court’s permission to apply without it. This is a procedural step rather than a real barrier for most people, but knowing about it in advance means it does not come as a surprise.
Divorce and property are separate
This is the part that matters most for an owner. While you can only apply for a divorce after twelve months, you do not have to wait to sort out property and finances. A property settlement can be negotiated and finalised at any time after separation, and dealing with it early lets you value the business, trusts and other assets while the records are current, rather than reconstructing them later.
Why the timing matters for owners
Leaving the financial side until after the divorce can be risky, because time limits apply once a divorce order takes effect. For a business owner, an early and orderly settlement protects cash flow and lets the business keep trading, rather than leaving major decisions hanging over it while the twelve months pass.
Getting the application right
The divorce application itself is straightforward for most people, but small errors can cause delay. You will need your marriage certificate, and where you were married overseas a translation may be required. If you have children under eighteen, the court needs to be satisfied that proper arrangements are in place for them before the divorce is granted, though that is separate from any formal parenting orders. You can apply on your own or jointly with your former partner. For a business owner, the practical point is to treat the divorce as the administrative step it is, and to put your energy into the property settlement, which is where the real financial decisions are made and where good advice makes the difference. Handled in the right sequence, the divorce and the settlement need not slow each other down, and you avoid the common mistake of leaving the finances until the divorce is already final.
As the largest team of specialist family lawyers in WA, Leach Legal helps business owners manage both the divorce and the property settlement in the right order. Book a consultation to plan your next steps.
