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  • Kirtan Swamy

The importance of separation dates in divorce applications

Updated: Apr 18

What is a divorce application?

A divorce application is when married spouses apply to legally end their marriage. In Australia, there is a 'no fault' divorce system, which means that the Court does not consider why the parties have brought a divorce application. The only requirement is that there is an 'irretrievable breakdown.' To demonstrate an irretrievable breakdown, the parties must prove that they have been separated for a period of twelve months and that there is no reasonable prospect of reconciliation.

 

When can I apply for a divorce? 

As aforementioned, to obtain a divorce, the parties must be separated for twelve months prior to applying for divorce. This period of twelve months does not need to be ongoing or continuous and can be an aggregated period.

 

For instance, if the parties were initially separated for seven months, reconciled for three months, and then separated again for five months, the total duration of their separation (seven months plus five months) can be combined to meet the required twelve-month separation period.

 

However, it is important to note that the period of reconciliation can only be for one period of a maximum of three months. If the period of reconciliation is longer than three months, the Court then deems the parties to have resumed the relationship.

 

What happens if there is a disagreement between the separation date? 

A disagreement on the separation date is unlikely to have a significant impact if the variance is minimal, for example, a few weeks or even a month. This is because it takes time for the application to be heard before a Registrar in Court, during which the twelve-month period may have lapsed from the latter date.

 

However, if there is a significant difference between the dates, for example six months, then the Court may need to set a hearing date to determine the exact separation date. Alternatively, the Court may require you to withdraw your application and re-file once twelve months from the disputed date has passed.

 

It is, therefore, essential to definitively ascertain the date the parties have separated. 

 

When does separation start? 

Separation is when a person and their spouse stop living together. 

Whilst separation looks different in every relationship, a date may not be clear cut for everyone. For instance, it is possible for spouses to live in the same house and still be considered separated. This is referred to as the 'separation under the one roof' rule.

 

If you have been separated under one roof during the twelve-month period of separation, you may need to provide extra information to the Court in the form of an affidavit. However, if you have lived separately for the past twelve months, you do not need to provide extra information to the Court. 

 

If you are required to submit further evidence in the form of an affidavit, you may need to explain the following:

·         When you consider yourself separated?

·         Did you tell your friends or family that you are separated?

·         Did you stop going to events together as a couple?

·         Did you stop doing chores together and for each other? (e.g. cooking, cleaning, washing clothes etc.)

  

Does the length of your marriage determine your applicability for a divorce application?  

Whilst the length of the marriage generally does not affect your ability to obtain a divorce, the Court requires parties who have been married for less than two years to attend counselling and provide evidence to the Court. However, you may not be required to attend counselling in specific circumstances, including circumstances where there are allegations of family violence. Similarly, if one party refuses to participate in counselling, the Court may grant leave for the divorce application.

 

What happens if you have any children under the age of 18?

 If you file a sole application for divorce and have children under the age of 18, both parties will need to attend Court. If the application is a joint application for divorce, divorce orders can be made by the Court ‘in chambers’ - meaning that you will not need to attend Court.

 

The information provided in this article is general advice only. Given that each situation is unique, we recommend that you contact our family law team if you have been served or are considering filing an application for divorce. Our team can be contacted on (03) 9311 8911.

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