Since 1976, there has only been one ground for divorce in Australia, which is that the parties have been separated for at least twelve months. That, of course, instantly raises the question, what constitutes a separation.
A legal separation involves both a belief and the physical aspects. For there to be a separation, at least one party must believe that the marriage has effectively ended.
A separation brought about just by work commitments is not enough; if, whilst away on work, a party decides that the marriage is over, the separation starts from that time, not from when the move for work started. The belief about the ending of the marriage only has to be by one of the parties, and does not need to be marked by some formal act or notice.
Physically, a separation requires the ending of life as a husband and wife. Usually this involves living in separate residences and ending day to day social contacts. This does not mean the ending of all contact. If there are children, there should be ongoing contact, but in their roles as parents. Similarly, the couple may stay friends and see one another, but as friends rather than husband and wife.
Some couples may even stay living under the one roof after they have separated. This may be for financial reasons, or to help children adjust, or even just while a home is sold. If a divorce is applied for and for some of the separation period the couple have lived under the one roof, the Court will require some corroboration, usually from a friend or relative and covering matters such as separate bedrooms, the absence of social contact and that a separation has been made known.
One does not have to be divorced to deal with financial or parenting matters - these can be dealt with at any time. However, property proceedings must be commenced within twelve months after a divorce, or special permission must be sought from the Court. On the other side of the coin, a divorce is not essential - unless another marriage is planned - but it only takes one party to get a divorce. Consent of a spouse is not required.
To apply for a divorce, the marriage must be proved, usually by producing a marriage certificate. Sometimes if people have been married overseas, particularly in countries where there has been unrest or conflict, that can cause problems, but those problems are usually solvable.
If you need help or advice about divorce, or indeed any Family Law problem, the Family Law team at Quinn & Scattini are ready to help. You can see an experienced Family lawyer for practical guidance and assistance you will be able to understand.
If you would like to find out how Quinn & Scattini can help you, please call us on 1800 999 LAW (1800 999 529), or email us at email@example.com