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Getting a Divorce – Do I Have to be Separated and How Do I Separate

22/02/2021

Divorce law in Australia is governed entirely by the Family Law Act 1975.  A Divorce Order is an Order made by the Family Court of Australia or Federal Circuit Court of Australia ending the marriage between two people.

The Family Court or Federal Circuit Court will make an Order when there has been an irretrievable breakdown of marriage as evidenced by a period of 12 months of separation.

The period of 12 months separation must be completed prior to the filing of the Divorce Application.  If the Application is filed before the parties have completed a period of 12 months separation, the Application for Divorce will be dismissed by the Court. 

If the Family Court/Federal Circuit finds that the parties have been separated for 12 months (or more) there is no discretion to refuse the making of a Divorce Order.  There are however two circumstances when the Court will not make the Divorce Order and these circumstances are:

  • Where it is satisfied that there is a reasonable prospect of cohabitation between the parties being resumed. 
  • The Court is not satisfied that there are proper arrangements in place for the care, welfare and development of children.

The Divorce Application requires the Applicant to include evidence in relation to the likelihood of resumption of cohabitation as well as the arrangements in place for the care, welfare and development of the children. 

What does separation means?

There are two components to a separation that must have occurred to enable to Court to find that the parties have been separated for a period of 12 months or more.

These two components are:

The mental component- Letting the other party know that the marriage has come to an end.

The physical component- This requires a physical separation in the sense that the parties are no longer living as husband and wife. This will usually (but not always) mean that they no longer reside in the same place.

Communication of intention to end the marriage – One or Both Parties Must End the Marriage

Parties can separate even though the cohabitation between the parties was brought to an end by one party and not by both. In other words one party to the marriage can end the marriage by communicating that they do not wish to continue with the marriage. The other party may not want that to occur or may not accept the decision but that will not prevent the Court from making a Divorce Order.

Physical separation of the parties

In most cases there will be a physical separation as the parties will have ceased to reside under the same roof.  The fact that they are separate will be obvious. 

There can be separation even though they continue to reside under the same roof and there continues to be some limited interaction between the parties. The Family Court/Federal Circuit Court can still make a Divorce Order in these circumstances so long as the basis of the marriage – the “Consortium Vitae” has broken down. Practically this will involve the Court looking for evidence as to the absence of such matter as:

  • Living and sleeping arrangements within the household.  
  • Existence of sexual relations.
  • Public repute. 

If the Divorce Application relies on a 12 months separation and some or all of the separation found is under one roof, the Court will require additional evidence.  In these cases the Court will require an Affidavit from a person who is not the husband or wife to independently verify the parties as being separated under one roof. 

Resumption of Cohabitation

A period of resumed cohabitation will not necessarily extinguish earlier periods of separation.  If for example, there was a trial reconciliation period (that did not succeed) periods of earlier separation can still be counted as long as the periods of resumption of cohabitation were no longer than 3 months.  Therefore, in some circumstances earlier periods of separation can still be used to achieve a total of 12 months separation. 

How Does Divorce Effect Property Division

A Divorce Order can be made before or after any proceedings for property division.  Once a Divorce Order becomes absolute, any application for property division must be made within 12 months of the Divorce Order becoming final. 

At Watson & Watson Lawyers our experienced Family Solicitors can assist in relation to all aspects of family law matters including divorce matters, financial/ property settlement or contact issues for children.  If you have any concerns regarding divorce or seek assistance in relation to your divorce, please contact Richard Watson, Senior Family Lawyers or his Personal Assistant Shereen Da Gloria to discuss your matter and seek the appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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