Prerequisites for a Divorce
The Family Law Act 1975 (Cth) provides that the Court may grant a divorce only if it is satisfied that:
There is a sufficient connection between the applicant and Australia (locational nexus); and
The marriage has broken down irretrievably.
Locational Nexus
At the date the divorce application is filed, either the applicant or their spouse must:
be an Australian citizen (whether by birth, descent, or grant of citizenship); or
be domiciled in Australia; or
ordinarily reside in Australia and have done so for at least 12 months immediately before filing the application.
Establishing that the Marriage has Broken Down Irretrievably
Australia has a "no-fault" divorce system. The Court does not consider who was responsible for the breakdown of the marriage.
To establish that the marriage has broken down irretrievably, the parties must have:
separated and lived separately and apart for a continuous period of at least 12 months immediately before filing the divorce application; and
there must be no reasonable likelihood of reconciliation.
What Does "Separation" Mean?
Separation involves more than merely living in different places. It occurs when the marital relationship has ended.
Generally, separation occurs when one or both spouses:
form an intention to end the marriage;
communicate that intention to the other spouse (either expressly or by conduct); and
act upon that intention by behaving in a manner consistent with the end of the marital relationship.
Whether a separation has occurred depends on all of the circumstances of the particular relationship.
Essential Elements of Separation
The courts have generally identified three key elements:
An intention to separate;
Communication of that intention; and
Action consistent with that intention.
Can You Be Separated While Living Together?
Yes.
The Family Law Act specifically recognises that spouses may be separated even though they continue to live in the same residence.
Section 49(2) of the Family Law Act 1975 provides:
The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
This is commonly referred to as "separation under one roof".
Where the parties remain living together during part or all of the 12-month separation period, additional evidence is usually required to establish that the marital relationship had in fact ended.
Examples of evidence that may assist in proving separation under one roof include:
sleeping in separate bedrooms;
operating separate bank accounts;
ceasing sexual relations;
dividing household responsibilities differently;
informing family and friends of the separation;
notifying Centrelink or other government agencies;
attending social events separately; and
evidence from independent witnesses confirming the separation.
What Happens if We Reconcile During the 12-Month Separation Period?
Sometimes couples separate, attempt a reconciliation, and then separate again. The Family Law Act recognises that relationships do not always end immediately and allows parties a limited opportunity to reconcile without having to restart the entire 12-month separation period.
Section 50 of the Family Law Act 1975 provides that if parties resume their marital relationship for a period or periods totalling no more than 3 months and subsequently separate again, the periods of separation before and after the reconciliation may be added together when calculating the required 12-month separation period.
For example, if a couple separates for 8 months, reconciles for 2 months, and then separates again for a further 4 months, the periods of separation may be aggregated, allowing the parties to satisfy the 12-month separation requirement.
However, if the reconciliation continues for more than 3 months, the earlier period of separation generally cannot be counted and the 12-month separation period will ordinarily recommence from the date of the later separation.
When Does a Divorce Become Final?
If the Court grants a divorce, the divorce order does not take effect immediately.
Unless the Court orders otherwise, a divorce order becomes final one month and one day after the date on which the divorce order is made.
This date is important because various time limits begin to run once the divorce becomes final. In particular, applications for property settlement and spousal maintenance must generally be commenced within 12 months after the divorce order takes effect.
Parties should therefore obtain legal advice regarding any financial matters before the expiration of this time limit.
Property Settlement After Separation or Divorce
A property settlement application does not require the parties to be divorced.
In fact, parties may seek orders adjusting their property interests:
during their marriage;
after separation; or
after divorce.
However, once a divorce order becomes final, any application for property settlement or spousal maintenance must generally be commenced within 12 months of the divorce becoming final.
Applications made outside that period require the leave of the Court.
Parenting Arrangements and Parenting Orders
Parenting matters are separate from divorce proceedings.
A parenting order may be sought regardless of whether the parties are married, separated, or divorced.
Generally, parenting proceedings may be commenced at any time before a child turns 18 years of age.
When determining parenting arrangements, the Court's paramount consideration is the best interests of the child.
Need Advice About Divorce, Property Settlement or Parenting Arrangements?
Every family situation is different. Whether you are considering separation, applying for a divorce, negotiating a property settlement, or seeking advice about parenting arrangements, obtaining legal advice early can help you understand your rights, obligations, and available options.
Brendan O'Haire of O'Haire Legal provides practical and straightforward family law advice to clients throughout Victoria and Australia.
For assistance with divorce applications, property settlements, parenting matters, or family law disputes, call 1800 072 085 or contact O'Haire Legal to arrange an initial consultation.
