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Divorce – What do you have to do to separate?

07/06/2021

In order to apply for and obtain a divorce in Australia the parties to a marriage need to have been separated for 12 months.  After they have been separated for 12 months, a Divorce Application can be filed in the Federal Circuit Court of Australia. There is no requirement to register the date of separation. The Divorce Application cannot be filed before the 12 month period of separation has been achieved.  If it is filed early the Federal Circuit Court will dismiss the Application.

Who can Apply for a Divorce?

In order for there to be jurisdiction for the grant of a divorce one of the parties to the marriage must be:

  • An Australian Citizen;
  • Ordinarily Resident in Australia for 1 year prior to filing the Application;
  • Domiciled in Australia.

Do both husband and wife have to agree to the Divorce?

The Application for Divorce can be made by one party to the marriage or both.  If both parties make the Application it is a Joint Application.

The Application for Divorce can be made by one party alone and without the other party’s permission or consent to the Application.  The Application must be filed with the Court and a sealed copy must be served on your spouse.   If your spouse cannot be located an Application for Substituted Service can be made to the Court.

What are the Grounds for Obtaining a Divorce?

There is one ground for divorce in Australia which is “irretrievable breakdown” of marriage which is evidenced by 12 months separation.  The Application cannot be made without there being filed with the Application, a Counselling Certificate if the marriage is for a period of less than 2 years.

What is Separation? Do you have to live in different places?

Separation means more than physical separation.  Most commonly when parties separate they commence to live in different houses but this is not always the case. 

A separation involves the breakdown of the marital relationship where one or both parties form the intention to end or severe the marriage and not to resume their marital relationship.  There are 3 elements of separation:

  • Intention of or both parties to severe and not resume the marital relationship. 
  • The parties act on that intention or act as though the relationship has come to an end.
  • Where one party alone considers that the relationship is at an end and that party must communicate that to the other party.

The Court can make an Order for Divorce even if the separation period of 12 months was under one (and the same) roof.

What is Separation Under One Roof? 

Separation under one roof for a period of 12 months can form the basis of a separation that will allow the Federal Circuit Court to make an Order for divorce.  The Federal Circuit Court in these situations requires additional evidence which would cover such matters as:

  • What has changed since the parties regarded themselves as married?  This could be different bedrooms or the cessation of their sexual relationship. 
  • Stopping the performance of domestic duties such as washing, cooking, ironing and housework.
  • Existence of new and different financial arrangements for each.
  • Not socialising together.
  • What the parties told other persons including relatives.

An Affidavit setting out the facts and circumstances of a separation must be filed with the Court when the Application for Divorce is filed.

Resumption of Cohabitation – What Happens if You Get Back Together?

Parties to a marriage can resume cohabitation for a period of up to three (3) months.  If the resumption of cohabitation does not proceed, the parties can use prior periods of separation to constitute the 12 month period required for evidence of irretrievable breakdown of the marriage. If the resumption of cohabitation exceeds a period of three (3) months and then continues, then a fresh 12 month separation must be achieved.

Hearing the Divorce Application

The Divorce Application is heard by a Registrar of the Federal Circuit Court of Australia.  If the Court is satisfied that the husband and wife have been separated for a period of 12 months and that proper arrangements have been made for the care of any children of the marriage, an Order of Divorce will be made. The Order becomes Absolute after one month and one day from the date the Order is made by the Court.

Our experienced Family Law Solicitors at Watson & Watson Lawyers can assist you with your Divorce and other family law matters including children contact issues and/or financial/property settlement.  Our experienced Family Lawyers assist in making the divorce process smooth and without hiccups.  Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and let us assist you in streamlining this process.

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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