Separated? Do You Need to Get Divorced?

Hi, I’m Bruce Provan, Managing Director of Page Provan Family and Fertility Lawyers in central Brisbane. In this video, I answered a question I get asked a lot: “We’ve been separated for ages — do we need to get a divorce?” The short answer I gave — and I’ll expand on here — is: no, you don’t have to get a divorce unless you want to remarry. But there’s a bit more to the story than that, and it’s worth understanding the difference between the legal, practical and emotional sides of ending a marriage.

The short answer — when divorce is required

Let’s start with the simplest takeaway: divorce is not mandatory after separation. If you and your former partner separate and never remarry, many people simply never apply for a divorce and live the rest of their lives as separated spouses. There is nothing in the law that forces you to apply for divorce just because you are separated.

That said, if you do intend to remarry, you will need to be divorced first. A divorce is the legal end to a marriage; without it you remain married in the eyes of the law.

Why some separated couples never get divorced

There are several common reasons why people choose not to get divorced after separation:

• No practical need: If neither party plans to remarry, or if their legal and financial arrangements are settled and working, they may see no need to pursue a divorce.
• Cost and effort: Some people avoid the perceived cost or hassle of legal proceedings when there is no pressing reason to proceed.
• Emotional reasons: For some, divorce can feel like another painful finality. For others, avoiding divorce is a way to keep some emotional or family status quo.
• Complex family dynamics: In cases with ongoing blended family responsibilities or shared parenting arrangements, people sometimes delay or avoid divorce while they work out practicalities informally.

None of these reasons are “wrong.” The decision to apply for a divorce is personal, and I often tell clients that practical necessity and emotional readiness both matter.

Why some people do choose to get divorced — the emotional side

Even though it’s not legally required in many situations, divorce often carries emotional importance. For many people, getting the divorce finalised is a symbolic and psychological step that allows them to close one chapter and move forward with certainty. You might recognise this in yourself or someone you know — a legal document can offer a sense of closure that informal arrangements cannot.

“Divorce can be an emotional issue and for some people it’s important for them to get divorced just so they feel as though the marriage is finalized and they can move on with their life.”

That emotional need can be as valid a reason to pursue divorce as any legal requirement. If securing that sense of closure matters to you, it’s worth making the legal steps to obtain a divorce.

When is divorce usually applied for?

In practice, couples often finalise their arrangements for children and property before applying for divorce. This sequence makes sense because divorce is a legal termination of the marital relationship, while property division and parenting arrangements deal with the practical consequences that flow from separation. Resolving financial and parenting matters first often simplifies the divorce application process.

However, there is no strict rule that property and parenting arrangements must always be finalised before you apply for divorce. The best approach depends on the particular circumstances of the separation.

How the divorce process works — joint vs sole applications

There are two common ways to apply for divorce:

• Joint application: Both parties sign a joint application for divorce and lodge it with the court together. When the application is properly completed, and the court is satisfied, neither party usually needs to appear in court. A joint application is often quicker, less confrontational, and less stressful because both parties have agreed to the process.
• Sole application: One spouse can make a sole application for divorce and lodge it with the court. In that case, the application must be served on the other spouse. Service can be carried out by a process server or, more commonly, through the other party’s lawyer if they are represented. Depending on the circumstances, a court appearance may or may not be required.

The divorce itself is typically a straightforward process if the documents are completed correctly and the requisite separation period has been met (discussed below). The court’s role is to ensure legal requirements are satisfied before granting the divorce order.

Service and court attendance

For a joint application, once the documents are lodged the process can proceed without either party attending court, provided the forms and statements are in order. That makes a joint application attractive when parties remain cooperative.

For a sole application, the applying party is responsible for ensuring the other party is properly served with the divorce application. Service can be performed:

• by a professional process server, or
• through the other party’s lawyers if they have legal representation.

Following proper service, the court will decide whether the divorce can be granted based on the materials before it and any necessary procedural steps.

Key legal points to remember

There are a few legal realities that are useful to keep in mind:

• Divorce ends the marriage, not financial matters: A divorce order dissolves the marriage. It does not, by itself, resolve property division, spousal maintenance, or parenting arrangements. Those topics require separate agreement or court orders.
• Timing matters: Many people separate long before they legally divorce. Often property settlement and parenting arrangements are attended to first, but you can choose the order that suits you — with the caveat that there are statutory time limits and procedural considerations for seeking court orders if agreement cannot be reached.
• Seek tailored advice: Family law can be complex and facts matter. If you have significant assets, complex financial arrangements, or contested parenting issues, professional legal advice is important to protect your position.

Common questions I hear from clients

Do I have to go to court?

Usually not for a straightforward joint application. For sole applications, it depends on how the other party responds and what information the court requires. Many divorces are finalised administratively once the documents satisfy the court’s requirements.

What about children and property?

These are separate issues from the divorce itself. Courts expect that arrangements for children and property will be made if possible, but a divorce can be granted even if property or parenting orders are still outstanding. That said, practical and emotional sense often points to resolving parenting and financial matters before or alongside the divorce process.

How long does the divorce process take?

Timelines vary. The administrative side of a straightforward joint application can be relatively quick once filed and processed. Sole applications and contested matters take longer, particularly if court hearings are required. If you are concerned about timing, speak to a lawyer about likely timeframes in your jurisdiction.

Practical steps if you’re considering divorce

If you’re weighing whether to apply for divorce, consider the following checklist to guide your next steps:

1. Decide whether remarriage is in your plans — if it is, you’ll need a divorce to remarry legally.
2. Work out whether parenting arrangements are in place and stable — if not, prioritise agreements for your children’s care and support.
3. Assess whether property settlement has been addressed — unresolved financial issues may still need attention even if you file for divorce.
4. Consider whether a joint or sole application is appropriate — joint if you can cooperate; sole if you cannot reach agreement or one party is unwilling to apply.
5. Obtain legal advice if you have significant assets, business interests, or complex parenting matters — professional advice can avoid costly mistakes.

When to get help

If you’re uncertain about what to do next, or if you have questions about the consequences of delaying divorce or how divorce interacts with property and parenting matters, talk to a family lawyer. Even an initial consultation can clarify your options and the likely practical and legal outcomes. If you and your former spouse can communicate constructively, consider mediation or a collaborative approach to work through property and parenting arrangements before finalising the divorce.

Final thoughts

Divorce is a legal tool that finalises a marriage, but it is not always necessary or immediately required following separation. Many couples separate and never formally divorce because they have no need to remarry and their practical arrangements suit them. For others, divorce provides psychological closure and a clear legal endpoint that helps them move on.

Whether you decide to apply for divorce depends on a mix of legal necessities and personal priorities. If you want to remarry, you will need the divorce. If you value finality and closure, that is a valid reason to proceed. If your separation is functioning and there are no plans to remarry, it’s perfectly acceptable to delay or forgo divorce — provided you are comfortable with the legal and practical consequences.

If you’d like to discuss your situation in more detail, our firm specialises in family and fertility law and we can help you understand the best path forward for you and your family.