In Australia, there is only one prerequisite to obtaining a divorce. That is, that the marriage has broken down irretrievably – but how is this established?

The Family Law Act 1975 (Cth) (referred to as “the Act” in this article) states that the Court can be satisfied that a marriage has broken down irretrievably if the parties have separated, and thereafter have livedseparately and apart for a continuous period of no less than 12 months prior to filing their application for a divorce Order. (see sections s48(1),(2) &(3) of the Act).

In some circumstances, one party may refuse to accept that a relationship is over. In these circumstances, separation can occur by one party leaving the home of the other, and the separation does not have to be a mutual decision. It is helpful in these circumstances for the party wishing to apply for the divorce to keep evidentiary documents such as bond payment receipts,lease agreements and receipts for rent or any new property in which they reside, confirmation of them changing their address with government departments such as Transport and Main Roads and the Passport Authorities in case separation or the separation date is disputed.

Problems can arise when parties remain living under the same roof, and in these circumstances the party applying for the divorce must prove that the factors that have defined the matrimonial relationship have changed to an extent that the relationship is no longer one of a married couple living as a unit.  Section 49(2) of the Act provides for this,and in s49(2) applications, it is enough to show evidence that concludes that a separation has occurred – and this is usually in the form of an affidavit from the filing party, as well as an affidavit from a person who can corroborate their claims.  The case of ‘In the Marriage of Pavey (1976) FLC 90 – 051’ provides:

-       Separation can only occur when there is intent to sever the matrimonial relationship (by one or both of the parties).

-       What constitutes as a separation will vary from couple to couple (so this is a discretionary determination which is based on the          facts on each case).

-       Usually, where parties live together after separation there is an assumption of an inherent unlikelihood that the marriage has         broken down for the common residence suggests continual cohabitation and in these cases the party seeking the divorce will         have to explain why they are living under the same roof and provide evidence that separation has occurred(ie. By way of Affidavit         and corroborating affidavit as mentioned above).

-       The evidence should contrast the state of the relationship before the marriage broke down.  

Please contact us if you would like more information about obtaining a divorce in Australia – why not book in for a 15 minute free initial consultation!

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