What is the Difference Between Legal Separation and Divorce

There’s no doubt that family breakups are very high on the list of the most stressful and painful experiences any family has to confront. Family law is a specialised and highly complex area of the law so it’s vital to make sure you are supported by an experienced specialist family lawyer.

One of the first things you’ll need to understand is the distinction between a legal separation and a divorce. In this brief article, we introduce you to just some of the important aspects of both.


Under Australian family law, separation is the act of ending a marriage or de facto relationship. Put simply, a couple is separated when they no longer live together as a couple. A separation may be initiated by one or both spouses and it is also possible to be separated under one roof, subject to certain criteria. There is no requirement to register a separation. It’s important to consult your Family Lawyer to get the right advice for your specific situation.

Separation requires no legal processes or documentation, but you may need to inform agencies such as Medicare or Centrelink.


Divorce is the formal legal ending of a marriage and often follows from a separation. To obtain a divorce, you must have been separated for at least 12 months to prove your marriage has ‘irretrievably broken down’. Your separation will be assessed based on the facts of your particular situation. The question of who is at fault for the marriage breakdown is not considered under Australian family law.

Separated couples do not have to divorce, but you should consult a divorce lawyer to understand the legal implications of remaining married. It’s also important to understand that divorce is separate and distinct from property settlement and parenting arrangements after the breakdown of a marriage.

Your decision – Legal Separation or Divorce?

Which path you choose is very much a personal decision, driven by your family’s particular circumstances. Couples may elect to formalise their property settlement and parenting arrangements but remain married in the eyes of the law.   If you do this then you are not able to remarry. The best choice for you may be influenced by a number of factors, from financial or taxation considerations, to what is happening with the family home and on to matters of religion. Your family lawyer will guide you through the pros and cons of the many factors you need to consider. With a track record of fifteen years as family lawyers supporting Perth families, Leach Legal is here to guide you through this complicated process.

The Leach Legal website includes a range of valuable resources designed to help start your thinking about the elements of the separation or divorce process, including our  Marriage, Families and Separation brochure and a First Steps Guide.

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