What if my ex doesn’t want to separate?

It does not matter at all! Separation does not need to be a joint decision. If one party regards the marriage as over, then separation is taken to have occurred so long as that party has clearly communicated their intention to separate from the other party. That communication cannot be vague or equivocating in any way or have left the other party with the view that the marriage can be salvaged.  

You still have to wait the requisite 12 month period from the date of separation to demonstrate the irretrievable breakdown of the relationship before you can apply for a divorce order.

If there is any likelihood of reconciliation and resumption of the marriage, you should consider attending some form of alternative dispute resolution or marriage counselling. This will be a requirement if you are married for a period of less than 2 years and you will have to produce a Counselling certificate at the time of filing the application for divorce.

It is not unusual for parties to separate, reconcile and then separate again. If the separations are for periods of less than 3 months, the 12 month period does not reset and you can add up the different blocks of separation as long as they total 12 months. If the period of reconciliation is more than 3 months though, the date of separation resets.

In some cases, it is difficult to clearly say when separation occurred. Usually, a day here or there will not make any difference, but it can sometimes. The divorce process works differently in different countries and many other countries do not have the 12 month waiting period. If that is the case, the date of separation can be very important because one party could try to ‘beat’ the other and file for divorce in a country before the expiry of the 12 months in Australia. If that happens, you should consult a lawyer immediately.