Divorce and separation are never easy. Whether you’re wrestling with losing a partner, worrying about your children, or anxious about splitting your home and finances, the family law process in Western Australia can feel overwhelming.
Many people aren’t sure where to start or what their rights are.
You may have questions like: What’s the difference between separation and divorce? What about our kids or our house? That’s why, we’ve compiled this detailed FAQ to guide you through all aspects of divorce and separation in Western Australia, backed by up-to-date information and expert advice.
FAQs About Divorce and Separation in Western Australia
1. What’s the difference between separation and divorce in Western Australia?
Separation is when you and your partner decide to end your relationship and stop living together as a couple. It can happen informally like you simply move out or start separate lives. It can be initiated by one or both partners. You do not need a court order to separate. Despite being separated, you still have ongoing obligations. For example, to support any children (child support) and even potentially each other (spousal maintenance).
Divorce is the formal legal process that ends a marriage. To get divorced in Australia, you must prove your marriage has broken down irreversibly by having been separated for at least 12 months. You apply through the Federal Circuit and Family Court. Importantly, divorce itself does not deal with propertydivision or child arrangements. Those issues must be resolved separately through financial agreements or parenting orders.
Here’s the quick comparison of separation & divorce:
| Aspect | Separation | Divorce |
| Definition | When a couple stops living together as partners. | A court order legally ending a marriage. |
| Formality | Informal No court steps required; just the intention to end the relationship. | Formal Must file an application with the Family Court and obtain a divorce order. |
| Legal Status | Still married (or a de facto couple) until divorce; cannot remarry. | Marriage is legally terminated; parties are free to remarry. |
| Financial & Parenting | Must be handled through agreements or court orders separately. | Divorce does not resolve finances/children. Those matters require separate action. |
| Obligations | Ongoing duties like child support and spousal maintenance can continue. | Spousal obligations largely end (except maintenance if ordered) once divorced. |
Want a step-by-step guide on how to apply for divorce? Read our complete guide on how to get a divorce in Australia..
2. Do my spouse and I have to apply together for divorce?
No. You can apply for divorce jointly or on your own. A joint application (by both spouses) is easier. You both agree there’s no chance of reconciliation, and you submit one form together.
With a joint application, you generally don’t have to formally serve papers or attend court. If you apply solely, you only sign your own application but must pay the fee and arrange service on your spouse.
3. How long do you have to be separated before divorce in WA?
Western Australian family law requires you and your partner to live separately and apart for at least 12 months before applying for divorce.
This 12-month clock starts from the date one of you clearly ends the relationship, even if you stay in the same home.
4. What if we reconcile for a period?
If you briefly reconcile, any time together up to 3 months won’t break the separation count.
One special rule: if you’ve been married less than 2 years, you must first attend a reconciliation counselling session and file a certificate confirming it.
In short, make sure you keep a record of your separation date and, if needed, complete counselling if your marriage was under 2 years before filing.
5. What is ‘separation under one roof’ in Australian family law?
“Separation under one roof” simply means you and your spouse live in the same residence but no longer function as a couple.
In WA, this is still a valid separation if you can show you live separate lives. For example, you might sleep in different rooms, split your finances, or stop joint activities. The key is proving to the court that you intend your marriage to be over. Often this is done by filing an affidavit from each of you and a neutral witness, detailing your separate arrangements.
Even if reconciliation occurs, any living-together period of up to 3 months counts toward one continuous separation, but it does not count toward the required 12 months for divorce. This means short reconciliations don’t force you to restart the clock, but they don’t shorten the wait for divorce either.
6. Who can apply for divorce in Western Australia?
Either you or your spouse or both together can apply for divorce, as long as at least one of you meets the residency rule. That means one partner must regard Australia as home and live here permanently, or be an Australian citizen (or have equivalent permanent status).
7. Can we divorce while still living together?
Yes, you can. Australian law requires 12 months of separation before a divorce, but “separated” simply means the relationship has broken down, not necessarily living apart.
If you and your spouse have clearly ended the marriage and spent 12 months living under separate arrangements (even under one roof), you meet the separation rule. The court will want evidence of separation (e.g. separate finances or sleeping arrangements). If in doubt, our Perth family lawyers can advise how to document and confirm your separation.
8. What if my partner doesn’t agree to the divorce?
You don’t need your partner’s consent for a divorce in WA. Australia has a no‑fault divorce system. Once you’ve been separated 12 months, you can apply on your own. Your spouse must be properly served with the divorce papers, but even if they object or ignore it, the court will proceed once all requirements are met.
9. Does divorce automatically divide property and assets?
No, divorce only legally ends your marriage. It does not divide assets, handle debts, or set child arrangements. You must sort out property and financial matters separately.
In Australia, the Family Law Act provides processes for property settlement and spousal maintenance, but these must be applied for with the court (or agreed by consent). Typically, parties negotiate a division of assets (home, cars, superannuation, savings, even debts) and then either formalise it with Consent Orders or have the court decide.
Keep in mind: once your divorce is final, the clock starts on financial claims.
- Married couples have 12 months after the divorce order takes effect to apply for property settlement or maintenance.
- De facto couples get 2 years from separation. Missing these deadlines can forfeit your right to claim, unless the court allows extra time for hardship.
10. How is property divided after divorce in Western Australia?
The law aims for a fair and just split, which isn’t always 50/50 but depends on what’s reasonable. You and your spouse should list all assets (family home, vehicles, shares, superannuation, etc.) and debts (mortgages, loans, credit cards).
The Family Court then considers factors like each person’s financial contributions (direct and indirect), future needs, and more. In practice, most couples reach agreement.
Common steps include:
- Inventory your assets and debts: Include all property, bank/super balances, investments, and liabilities.
- Negotiate a settlement: You may exchange offers or use mediation. If you agree, it’s wise to formalise it.
- Consent Orders or Financial Agreements: Agreements can be made legally binding by lodging consent orders with the court. This gives you legal certainty. Unresolved disputes may require a court hearing, but that’s rare.
Even if you agree on a split, always get proper legal documents. Formalising your property settlement (for example via court-approved Consent Orders) ensures it’s enforceable and prevents future disputes.
11. What happens to joint debts and loans after divorce in WA?
Just as important as dividing assets is dealing with any joint liabilities. Credit cards, joint loans, and accounts should be closed or separated as soon as possible to avoid one party racking up debt. You might agree that one spouse keeps the mortgage or that certain debts are paid out of asset sales.
Superannuation is also considered an asset to split, often via a splitting order by the court.
In short, both parties should ensure all shared finances are identified and properly divided. Having a legal agreement or court order can protect you from unexpected claims later.
12. How is child custody decided after separation in Western Australia?
If you have children under 18, the court insists you have made proper care arrangements before granting a divorce.
In WA, child custody is now referred to as parenting orders. The law’s sole focus is the best interests of the child. Typically, parents first try to agree on a parenting plan: where the children will live, how time is shared, schooling, and so on. This written plan can be lodged with the court for recognition but it’s not binding until lodged as an order.
If you can’t agree, either parent can apply for parenting orders, and the court will decide after considering factors like:
- Each child’s relationship with each parent
- The child’s age, maturity and any views they express
- Each parent’s capacity (work, location, health)
- The importance of protecting the child from harm.
Importantly, both parents are assumed to have equal responsibility for their children’s upbringing. Even if the child lives primarily with one parent, the other usually has a right to spend time with them. Courts encourage parents to co-operate; mediation or Family Dispute Resolution is often required to try settling arrangements before a hearing. Ultimately, courts prioritise stability and the child’s needs.
13. Can I get spousal maintenance after divorce in WA?
Spousal maintenance is ongoing financial support one spouse pays to the other after separation if the other can’t meet their own reasonable needs. It’s not automatic. The Court considers factors like each person’s income, age, health, and caring responsibilities.
For example, if one spouse took time out of the workforce to raise children or has a disability, they might get maintenance. Either party can apply for spousal maintenance anytime after separation, but again note the general time limits (within 12 months of divorce or 2 years of de facto split).
14. How does domestic violence affect custody or divorce?
In WA’s family law, domestic violence is taken very seriously. It won’t stop a divorce, but it heavily influences child custody and related orders.
The court’s top concern is safety: any history of family violence will be a key factor in custody decisions.
You can also apply for a Domestic Violence Protection Order (DVO) or restraining order to keep your partner away. This often means the abusive parent may face supervised visits or no contact. Hoe Lawyers can help navigate these issues, securing protective orders and fair parenting arrangements that prioritize your family’s safety.
15. Do I have to go to court to get a divorce or property settlement in WA?
Not always. In fact, most family law matters settle without a trial. Options include:
- Mediation and negotiation: A neutral mediator can help you reach agreement on parenting or finances. A final agreement can then be made legally binding.
- Consent Orders: Once you agree (for example, on property split or parenting), you can apply to the court to formalise that agreement. Consent Orders are written agreements approved by a judge. They become binding court orders without the need for a full hearing.
- Family Dispute Resolution: Services like the Family Court’s assisted mediation help narrow issues.
Only a small percentage of cases actually go to a contested hearing (under 5%). Staying out of court is faster and less stressful. It also saves on legal costs. If disputes do arise, Hoe Lawyers can represent you – but first, we’ll always try to negotiate or mediate an outcome.
16. What if I miss the deadline to apply for property settlement after divorce?
You generally must act quickly after separation. Divorce finalisation starts the clock;
- married couples have 12 months from when the divorce takes effect to file property or maintenance claims.
- De facto partners have 2 years from their break-up.
If you miss these deadlines, you don’t automatically lose your rights, but you do need the court’s permission, called “leave”. The court will consider hardship and fairness before allowing a late claim. Missing a deadline makes the process harder, so it’s wise to get legal advice early.
17. Do I need a lawyer to file for divorce?
You do not need a lawyer to file for divorce in WA. The court’s online system lets you complete and lodge the application yourself. Many people handle a straightforward divorce DIY. However, using an experienced divorce lawyer in Perth can help avoid mistakes. We ensure your forms are correct and deadlines are met.
Need help with your divorce or separation in WA? Let Hoe Lawyers Light the Way!
We handle divorce & separation, property settlements, parenting disputes and related issues across WA – from Perth to regional areas. We also have expertise in conveyancing matters if you’re buying or selling a home.
Our family law team is based in East Perth and ready to listen. You can reach us by call at 08 6244 5234 or email legaladvice@hoelawyers.com.au.