Going through any relationship breakup can be stressful and emotionally draining, especially if you have been married for a long time. In Australia, there is an important distinction that must be made between “divorce” and “separation” that not many people may be aware of. There are also different types of separation that effect the process of obtaining a divorce.
Read on to get an understanding of how and when you may have “legally” or “officially” separated with your former spouse and when you can file for divorce.
Divorce
Divorce is the legal term that refers to the severance of a marriage between two people. As such, divorce does not apply to couples in de facto relationships. Under Australian law, there is no requirement to prove the reason for the breakdown of the marriage. However, the parties do need to demonstrate to the court that the marriage has broken down irretrievably. This ground is established only if the parties have separated and thereafter lived separately and apart for a continuous period of not less than 12 months. The court will not make a divorce order if it considers that there is a reasonable likelihood of cohabitation being resumed between you and your former spouse. It is for this reason that an application for divorce can only be filed with the court once at least 12 months and 1 day have elapsed from the official date of separation.
Separation
In Australia, the legal definition of separation is when one party forms the intention to sever a marriage or de facto relationship and then communicates that intention to the other party. It seems like a simple definition, but many people may get confused about whether they are, in fact, separated for the purposes of Family Law in Australia.
Often, people may find themselves living entirely separate lives but within the same house, especially if there are children involved. Notably, the law does not require physical separation as evidence of a breakdown of a marriage or a de facto relationship. Couples may well be considered separated despite living in the same residence. This is known as “separation under one roof.”
If you continue to reside together with your former spouse, for example, for the sake of your children, this can potentially create some difficulties when it comes to filing for divorce. In these circumstances, a clear distinction needs to exist between you and your former partner living together for the sake of the children as parents, in contrast to living together as spouses. For this, an Affidavit is usually required in support of an application for divorce.
Marriages of less than 2 years’ duration
If you were married to your former spouse for less than two years, you will have an additional requirement of considering reconciliation with the assistance of a specified person when applying for a divorce. This is usually done in the form of marriage counselling. However, if your individual circumstances prevent any form of reconciliation counselling being a viable option, the parties would normally be required to obtain special permission of the court before being allowed to file an application for divorce. An Affidavit in this regard may also be required.
Process for filing for divorce
If you believe you are ready to file an application for divorce, you can commence the process yourself using the court’s online portal. You will first need to select whether you are filing a sole application (that is, by yourself) or if you are filing a joint application with your former spouse.
The requirements differ depending on whether it is a sole or joint application, whether there has been any period of separation under one roof and depending on the duration of the marriage, as outlined above.
Seeking legal advice
We understand that, sometimes, the whole process can be daunting and confusing, as no one marriage or relationship is ever the same. If you find it difficult to navigate through the process, feel free to reach out to one of our friendly lawyers who will be able to guide you in the right direction.
It is important to seek independent legal advice to help you understand your rights and responsibilities, and where possible, avoid going to court. There are also time limits which apply to filing in the Family Law Court for property settlement/and or spousal maintenance once a Divorce Order takes effect. If you are seeking legal advice about your separation, or just need to understand your divorce application options further, Daykin Family Law can help.
Shannon Daykin is an experienced Family and Divorce Lawyer, named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019. In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).
Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. Shannon was named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
