Understanding separation and divorce

Date: Aug 18, 2015

The breakdown of a marriage is a distressing time for parties involved. Unfortunately, separation and subsequent divorce may be inevitable if spouses are unable to resolve their differences.

When can one apply for a divorce?

A divorce is the legal dissolution of a marriage. Couples in Australia must go through a period of separation of no less than 12 months before they can apply for a divorce.

No official documents are legally required to indicate the separation has begun. However, parties are usually advised to inform family and friends or confirm the situation in writing to each other to avoid any confusion should a dispute arise in court as to whether they have separated for the requisite period of 12 months.

Separations can occur even when both parties are cohabiting. In other words, people can still be considered separated under Australian law even when they live under the same roof.

What constitutes separation?

Separation involves three elements:

  • an intention to separate
  • action upon that intention, and
  • communication of such intention to the other party.

When determining if separation has indeed occurred, the court will consider the specific facts of each matter, including:

  • Have the parties physically separated?
  • Do they continue to have sexual relationship?
  • Do they present themselves as a couple in public?
  • Do they care for the children of the marriage?
  • Do they continue to perform domestic duties?

Some spouses may decide during their separation to have another go at repairing their marriage. This is usually encouraged, and couples can reconcile for up to three months without the accrued separation time resetting.

Being proactive

While parties must wait at least 12 months before applying for a divorce, many people begin organising property settlements and arrangements for the care of the children immediately following separation. These issues can be taken care of irrespective of whether the divorce has taken place or not.

Coming to an agreement on these important issues can help the difficult process of dissolving a marriage run more smoothly and be finalised as promptly as possible.