Whilst the majority of couples enter into marriage with the expectation it will be for life, sometimes divorce is a sad but necessary step. In Australia, an application for divorce cannot be granted instantaneously. Couples must meet certain requirements which includes undergoing a mandatory period of separation.
According to the Family Law Act 1975, couples must be separated for at least 12 months before a person can apply for a divorce order.
How does the law define a separation?
This can be a thorny issue as you will not undergo any legal processes to separate, nor will you receive a certificate verifying your separation. This can make nailing down the date of your separation tricky. Married parties are considered to be separated if they are no longer living together as a couple. Generally, the simplest way to demonstrate this is for one partner to live in a different residence. This provides a definite time from which to measure the length of a separation.
However, couples can still demonstrate separation while continuing to live together. Legally, this is called ‘separation under one roof’.
Separation under one roof
Separation under one roof is an important tenant as it acknowledges that often one partner does not have the capacity, financially or otherwise, to live independently. But how do you prove that you have separated from your spouse in these circumstances?
The court looks at a number of factors including:
- Do you share a bedroom?
- Is there a continuing sexual relationship?
- Do you share meals and domestic duties?
- Do you attend social activities together?
- Have you ceased wearing your wedding ring?
- Have you notified Centrelink or other Government agencies of the separation?
- Are friends and family aware of the separation?
This is not an exhaustive list of what may be considered and no one factor is conclusive.
Other factors taken into consideration when separating
The law also recognises that couples may reconcile during the course of their separation. If this reconciliation lasts less than three months, the length of the separation prior to and after the reconciliation will contribute to the 12-month separation requirement. However, if the reconciliation lasts longer than three months, the court will consider the period of your separation to be reset.
It is also required that if you remain under the same roof as your estranged spouse, you must file a written statement called an affidavit that details why it is clear you have separated. Things like division of your finances, separate sleeping arrangements and informing your family and friends of the separation would all be pertinent. You must also explain the reason for continuing to live in the same home as well as what arrangements have been made for any children under 18 years of age during that time. If you have notified government agencies such as Centrelink or the Department of Human Services of your situation, any correspondence should be attached to the affidavit.
Short term marriages – two years or less
For marriages of two years in length and less, in addition to the 12-month separation requirement, you must attend counselling with your spouse to discuss any possibility of resuming the relationship. The counsellor must provide a certificate that states they have discussed the options for reconciliation with you and your spouse. This certificate should then be attached to your divorce application. If you do not want to attend counselling or it is not an option for you, you must wait 2 years from the date of marriage (in addition to the 12-month separation) before you can apply for a divorce. If you need specific advice regarding your separation or divorce application, please book an appointment with our team.