Divorce and Sep­a­ra­tion — What you need to know

How long do I have to be sep­a­rat­ed before I can divorce my spouse?

A divorce is the Court’s recog­ni­tion that a mar­riage no longer exists and a sep­a­ra­tion shows your inten­tion to divorce. In Aus­tralia you are required to be sep­a­rat­ed for a peri­od of 12 months before you can make an Appli­ca­tion for Divorce (Appli­ca­tion). This means that you have to wait for the 12 months to expire before you file your Appli­ca­tion. If you file ear­li­er then your Appli­ca­tion with the Court will be dis­missed. This is the case even if the actu­al hear­ing of your divorce takes place after the expi­ra­tion of the 12 months peri­od. The impor­tant date is the date that you file the Application.

It is not nec­es­sary for you to wait to obtain a Divorce to resolve your finan­cial and chil­dren’s issues. You can resolve those issues at any time dur­ing sep­a­ra­tion. Fur­ther, in the event you are unable to resolve your finan­cial and chil­dren’s issues, you can bring an Appli­ca­tion to the Court at any time after sep­a­ra­tion for the Court to deter­mine those matters.

What deter­mines a separation?

The most obvi­ous evi­dence of a sep­a­ra­tion is if one par­ty moves out of the shared home and takes up res­i­dence else­where. This is a clear indi­ca­tion that, in the mind of the per­son who has moved out of the home, there is a sep­a­ra­tion and it is like­ly that the date that they move out of the home will be the date of sep­a­ra­tion. How­ev­er, you can be sep­a­rat­ed under the one roof. This brings some com­plex­i­ty for the Court to deter­mine the actu­al date of sep­a­ra­tion. This is par­tic­u­lar­ly the case if one par­ty claims they are not sep­a­rat­ed or there is an argu­ment as to the date of separation.

If you and your spouse lived in the same home for part or all of your sep­a­ra­tion peri­od then it will be nec­es­sary to bring evi­dence to the Court to show that you were actu­al­ly sep­a­rat­ed. Such evi­dence would include a change in sleep­ing arrange­ments, a sig­nif­i­cant reduc­tion in shared activ­i­ties between your­self and your spouse, sep­a­rate hol­i­days and advis­ing fam­i­ly and friends that you are sep­a­rat­ed. Fur­ther, as much as pos­si­ble, there should be a divi­sion of finances and a reduc­tion in per­form­ing house­hold tasks for the oth­er per­son. To prove all of this it will be nec­es­sary for you to file an affi­davit out­lin­ing this evi­dence. Fur­ther, an inde­pen­dent per­son will be required to file an affi­davit sup­port­ing your claim that there has been a sep­a­ra­tion under the one roof. This will require them to put on evi­dence as to what they observed dur­ing the time that you were a cou­ple and what they observed after separation.

Divorce appli­ca­tion process

An Appli­ca­tion for Divorce can be filed joint­ly with your spouse. This Appli­ca­tion is filed online and will require that you both sign a state­ment that the Appli­ca­tion for Divorce lodged is true and cor­rect. If you file a joint Appli­ca­tion it will not be nec­es­sary for you to attend court for a divorce hearing.

In some cir­cum­stances only one per­son files an Appli­ca­tion for Divorce. If that is the case, it will be nec­es­sary for that per­son to file the appli­ca­tion online and then serve the doc­u­ment on their spouse in accor­dance with the Fam­i­ly Court rules. If there are chil­dren under the age of 18, the per­son who files the Appli­ca­tion for Divorce will be required to attend court on the date of the divorce hear­ing. The rea­son for this is that the Court will want to know that there are appro­pri­ate arrange­ments in place for the children.

Divorce and prop­er­ty settlements

If you obtain a divorce, then you have a fur­ther 12-month peri­od with­in which to file an Appli­ca­tion in the Court to obtain a prop­er­ty set­tle­ment. If you have not either obtained Con­sent Orders from the Court, entered into a Bind­ing Finan­cial Agree­ment, or com­menced pro­ceed­ings to have your prop­er­ty mat­ter deter­mined with­in the 12 month peri­od, then you must obtain the leave of the Court before you file any Appli­ca­tion for prop­er­ty settlement.

It is not easy to obtain the leave of the Court to com­mence prop­er­ty set­tle­ment pro­ceed­ings out of time and on many occa­sions the leave is not grant­ed. This could have a sig­nif­i­cant impact on your prop­er­ty set­tle­ment enti­tle­ments and, in some cir­cum­stances, there will not be a prop­er­ty set­tle­ment at all. It is very impor­tant to obtain legal advice if you have been divorced but have not had a prop­er­ty settlement.

Obtain­ing a divorce can be com­plex. The solic­i­tors in the Fam­i­ly Law team at Swaab are spe­cial­ists in the area of Fam­i­ly Law. Please con­tact us for more detailed advice.