Since the Family Law Act 1975, the only ground for divorce in Australia is called an “irretrievable breakdown of a marriage”.
Under this particular section of the Act which is Section 48, a couple when approaching the court for a divorce must have been separated for at least 12 months. There are many different ways that separation can be determined. In some cases both parties simply agree on the date of separation. In other cases the parties may differ in their approach as to when separation occurred and often a number of other factors can be looked at including:
- If the parties lived together
- If they continued to have an intimate sexual relationship
- Domestic duties for each other
- Holding out to public and other family members as remaining a couple
- Care and arrangements for the children
- Any other factors the court deems appropriate
In many situations, parties do “separate under the same roof” and if there is any dispute as to the date separation occurred, some times this requires the intervention of the court. Certainly, if there is a proposal by one party to separate the certainly they should not be prevented from doing so provided the requisite provisions of the act are met.
IS IT ESSENTIAL THAT BOTH PARTIES WANT TO SEPARATE?
It is only necessary for one party to form the view that the marriage is over. Generally speaking, the case law suggests that that must be communicated to the other party so that there can be no confusion or ambiguity. This could be via an SMS message, a verbal statement to the other spouse that the marriage is over or in some cases, an email or letter.
It is certainly not the case that both parties have to agree that the marriage is over for one party to be able to make an application for divorce.
CAN WE STILL BE SEPARATED UNDER THE SAME ROOF
As previously indicated, absolutely separation can be under the same roof. There is no requirement that parties must live separately out of the marital home and indeed in many cases for divorce parties do remain under the same roof even at the time of the divorce hearing. However, if an application for divorce is made while separated under the same roof, there is often a legal requirement for an independent person to also separately verify their knowledge of the marriage being over prior to the divorce being granted.
Our specialist team of family lawyers at our offices at Penrith, Richmond and Parramatta can assist in relation to any enquiries in this regard.
Call us now or email us for an appointment.
THE TOP THREE THINGS TO NOTE WHEN APPLYING FOR DIVORCE
The important factors to note are:
- Ensure that your marriage has ended for 12 months before making an application for divorce.
- Make sure that you have clearly communicated either verbally or in writing that the marriage is over to the other spouse.
- Seek legal assistance where necessary in relation to the divorce application to ensure that it goes through smoothly.
Please note that it does not prevent you bringing an application to seek legal advice from a specialist family law solicitor at Penrith, Parramatta or Richmond if you are wanting specific advice about financial arrangements. The requirement for 12 months separation only relates to an actual application for divorce.
We suggest an appointment with a specialist family law solicitor to discuss this in more detail if you have not yet been separated for 12 months.