Divorce in Western Australia: 12 Month Rule and How to Apply

Divorce and separation in Western Australia

Divorce in Western Australia is the legal step that formally ends a marriage. It is not the same as separating, and it does not settle who keeps the house, who pays what or where the children live. This guide explains who can apply for divorce in WA, how the 12 month rule works, what applies if you have been married less than 2 years, how to apply, and what a divorce order does not decide.

If you would rather talk it through with someone, our divorce and separation lawyers can explain where you stand and what to do first.

Divorce Laws in WA at a Glance

For a divorce in Western Australia, you can apply on your own or jointly with your spouse. You do not need your spouse to agree.
You must have been separated for at least 12 months before you apply.
If you have been married less than 2 years, a counselling certificate is required before you file.
Applications are made to the Federal Circuit and Family Court of Australia.
A divorce order ends the marriage only. Property, debts, superannuation and children are dealt with separately.

Who Can Apply for Divorce in Western Australia?

Either you, your spouse, or both of you together can apply for divorce, as long as at least one of you meets the residency rule. That means one of you must regard Australia as home and live here permanently, or be an Australian citizen (or have equivalent permanent status).

Because divorce is a national process, the application is not filed with a separate Western Australian court. It goes to the Federal Circuit and Family Court of Australia, although the people involved may live anywhere in WA, from Perth to regional areas.

Joint Divorce Application in WA or Sole Application?

A joint application is made by both spouses. You both agree the marriage has broken down and there is no chance of reconciliation, and you submit one application together. With a joint application you generally do not have to formally serve papers or attend court.

If you apply on your own, you sign your own application, pay the filing fee and arrange for your spouse to be properly served with the divorce papers.

What if my spouse does not agree to the divorce?

You do not need your partner’s consent. Australia has a no-fault divorce system, so once you have been separated for 12 months you can apply on your own. Your spouse must be properly served, but if they object or simply ignore the papers, the court can still proceed once all requirements are met.

The 12 Month Rule: How Long After Separation Can You Divorce?

Family law requires you and your spouse to have lived separately and apart for at least 12 months before you apply for divorce. The 12 months is counted from the date one of you clearly ended the relationship, and you can be separated even if you still share a home.

So if you are wondering how long you have to be separated before a WA divorce, the answer is 12 months. If you separated years ago, the 12 months is already behind you, but you should still be able to say when the separation began and show that the marriage stayed over.

Can we divorce while still living together?

Yes, it can be possible. “Separated” means the relationship has broken down, not necessarily that you live in different homes. If you and your spouse clearly ended the marriage and spent 12 months living under separate arrangements in the same house, you may meet the rule. The court will want evidence, such as separate finances or sleeping arrangements.

Working out and recording your separation date is the first practical step, and we cover it in our guide to the steps to separate in WA.

What if we reconcile for a period?

If you briefly get back together, time together of up to 3 months will not break the separation count. That period does not count towards the required 12 months, though. Short reconciliations do not force you to restart the clock, but they do not shorten the wait either.

Keep a record of your separation date and of any attempts at reconciliation.

Married Less Than 2 Years: Divorce Under 2 Years in WA

Many people search for a divorce under 2 years in Western Australia because the marriage ended quickly. The same 12 month separation requirement applies, and there is one extra step. If you have been married less than 2 years, you must first attend a reconciliation counselling session and file a certificate confirming it.

If this is your situation, complete the counselling session before you file and keep the certificate with your documents. If you are unsure whether the rule applies to your dates, ask us before you lodge anything.

How to Get a Divorce in WA: Divorce Application WA Step by Step

Applying for a divorce in WA is mostly done online. If you are wondering how to file for divorce in WA, a straightforward application usually follows these steps.

Check you are eligible. Confirm the residency rule, your separation date and, if it applies, that you have the counselling certificate for a marriage of under 2 years.
Decide how you will apply. Choose between a joint application and a sole application.
Complete the application online. The court’s online system lets you prepare and lodge the divorce papers yourself, and the filing fee must be paid.
Arrange service if you apply alone. Your spouse needs to be properly served with the application.
Deal with any children’s arrangements. If you have children under 18, the court expects proper care arrangements to be in place before it grants a divorce.
Wait for the divorce order to take effect. Once it does, the marriage is legally ended and the time limits for financial claims begin.

Want a longer walk-through of the forms and the court process? Read our step-by-step divorce guide.

Do I need a lawyer to file for divorce?

No. You do not need a lawyer to file for divorce in WA, and many people complete a simple, uncontested application themselves. An experienced family lawyer can help you avoid mistakes, check your forms and make sure deadlines are met, especially if service, children or finances make your case less straightforward.

Divorce vs Separation: What Is the Difference?

Divorce and separation are often used as if they mean the same thing, but they are different. The difference between divorce and separation is that separation is a change in your living and relationship arrangements, while divorce is a court order that legally ends the marriage. You can be separated for years and still be legally married. For the legal meaning of separation itself, see our guide to what separation means.

Here’s a quick comparison of divorce and separation:

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. You must file an application with the 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 or 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.

You do not need a court order to separate. Even when separated, you may still have obligations, for example to support any children (child support) and, potentially, each other (spousal maintenance).

What a Divorce Does Not Decide

Divorce only ends the marriage. It does not divide assets, deal with debts or set arrangements for your children. Those issues must be resolved separately, either by agreement or by applying to the court.

Property and debts: the home, cars, savings, shares and loans are not divided by the divorce order.
Superannuation: it is treated as an asset in a property settlement and is often split by a splitting order.
Spousal maintenance: ongoing support is not automatic and is a separate application.
Children: where they live and how time is shared are dealt with through parenting arrangements and orders, not the divorce.

Can you divorce without a financial settlement?

Yes. A divorce can be granted without a property settlement, because the two are separate. The risk is time. Once your divorce takes effect, the clock starts on financial claims, so it is worth getting advice before or soon after you file.

Married couples have 12 months after the divorce order takes effect to apply for property settlement or maintenance.
De facto couples have 2 years from separation.

If you miss these deadlines you do not automatically lose your rights, but you need the court’s permission, called “leave”. The court considers hardship and fairness before allowing a late claim, which makes the process harder.

Divorce and children

If you have children under 18, the court expects proper care arrangements to be made before it grants a divorce. In WA, what people call child custody is dealt with through parenting orders, and the law’s focus is the best interests of the child. Parents are encouraged to agree on a parenting plan first, and mediation or Family Dispute Resolution is often needed before a court hearing. For help with parenting arrangements and orders, speak to our team.

Family violence does not stop a divorce, but it can strongly influence parenting decisions and related orders. The court’s priority is safety, and a protection order or restraining order may be available. If you or your children are unsafe, get help first and legal advice as soon as you can.

Property Settlement After Separation WA: How Assets Are Divided

Property settlement after separation in WA is a separate process from divorce. A property settlement usually looks at what you own and owe together, what each of you has contributed and what each of you will need going forward. It can be agreed at any time after separation, but time limits apply (see the divorce time limits above), so get advice early. The law aims for a result that is fair and just, which is not always a 50/50 split. The court considers things like each person’s financial and non-financial contributions and their future needs.

Common steps include:

List everything: property, bank and super balances, investments, and debts such as mortgages, loans and credit cards.
Negotiate or mediate: you can exchange offers or use mediation to reach agreement.
Make it binding: a settlement can be formalised through consent orders, which the court approves, or through binding financial agreements.

Speak to a lawyer about joint credit cards, loans and accounts so that one person cannot run up debt before they are separated. Even if you agree on the split, put it in proper legal form. If you suspect your spouse is not being open about their assets, read about the penalty for hiding assets in divorce.

For a fuller explanation of what each person may be entitled to, see separation entitlements in Australia.

Do You Have to Go to Court to Get a Divorce?

Often not for the divorce itself, and many family law matters settle without a contested final hearing. Staying out of court is usually faster, less stressful and cheaper. The main options are:

Mediation and negotiation: a neutral mediator can help you reach agreement on parenting or finances.
Consent orders: once you agree, you can ask the court to approve the agreement. It becomes a binding court order without the need for a full hearing.
Family Dispute Resolution: assisted mediation services can help narrow the issues.

If a dispute cannot be resolved, we can represent you, but we will always look first at whether it can be negotiated or mediated.

Need Help With Divorce in WA? Talk to Hoe Lawyers

Whether you are ready to file or still working out your next move, our family law team can give you legal advice on separation and divorce in plain language. We assist with divorce, property settlements and parenting matters across WA, from Perth to regional areas, and our divorce and separation lawyers will tell you what to do first.

A free 30-minute initial consultation
A costs quote, with a fixed-cost option
Our office is at 200 Adelaide Terrace, East Perth WA 6004

Call us on 08 6244 5234 or email legaladvice@hoelawyers.com.au.

Book Your Initial Consultation Now

Divorce in Western Australia: Who Can Apply and How the 12 Month Rule Works