Separation and divorce

An application for a divorce can only be made if parties have been separated for a continuous period of more than 12 months.
Parties can be separated even though they are residing under the "one roof".
Once you are divorced you have twelve months within which to apply to the Court for a property settlement or spousal maintenance. After that time you must obtain the permission of the Court to apply.
If you have been married less than two years, you will both be required to attend counselling to discuss the possibility of reconciliation prior to filing an application for a divorce
Applications for a divorce must be made to the Federal Magistrates Court of Victoria.

The only ground for the dissolution of a marriage under the Family Law Act 1975 is the “irretrievable breakdown” of the marriage.
Separation means more than physical separation and involves the destruction of the marital relationship or the “consortium vitae”. This can only be established by proof of the parties having lived separately and apart for a continuous period of more than 12 months.

Separation can occur where one or both of the parties form the intention to sever the relationship, or alternatively act as if the relationship has been severed.

In determining whether there has been a marriage breakdown the Court will look towards the particular marriage and to whether there has been a change in the way the parties interrelate. In particular the Court will examine the following factors:

whether the parties continue to live together under the same roof;
the cessation of sexual intercourse;
whether there is recognition of the parties as a “couple” in public and in private relationships;
mutual society and protection;
the financial relationship between the parties;
whether the parties relate with the children as a “couple” or individuals.

Section 49 of the Family Law Act 1975 provides that parties may be held to have separated despite the fact that they continue to reside under the “same roof”. In such cases the Court will require clear evidence of the breakdown of the “consortium vitae” such as the intention of one or both of the parties to end the relationship.

You are able to apply for a divorce notwithstanding that you have not yet resolved property or children's matters. Similarly, you are not required to get a divorce once a property settlement or children's orders have been entered into.

It is important to note that if once you are divorced you have twelve months within which to apply to the Court for a property settlement or spousal maintenance. After that time you must obtain the permission of the Court to apply.

If you are married less than two years, you will both be required to attend counselling to discuss the possibility of reconciliation prior to filing an application for a divorce. The counsellor should thereafter sign a certificate provided by the Court which verifies that you have undertaken this counselling.

Alternatively you may file an application seeking leave of the court to proceed within two years of the marriage because of “special circumstances”.

Wills and Your Status - We note that unless a divorce is completed, you have the status of a married person. Any Will which specifically names your partner will be altered by a divorce to exclude them as beneficiary. Until such time they would be a major beneficiary of your estate were you to have no valid Will. Therefore, whether you currently have a Will or not, it would be wise to consider making a new Will to safeguard your assets.

If you have any queries about divorce or separation, please do not hesitate to contact us on 9670 4122.