Separation and Divorce
reprinted with the kind permission of Allan Weiss
People usually enter into committed relationships with the hope or expectation that they will last a lifetime. They often express their commitment through marriage. Australian law defines marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. The sad reality is that many marriages do not endure.
When a marriage fails and parties separate, they can terminate their marital relationship by getting a divorce. If you are in that position, you need to understand how the laws of Australia will formalize the end of your marriage.
If you are contemplating a separation or divorce, you probably have questions about your rights and responsibilities. This eBook will give you an overview of the laws that governs divorce and separation. It does not attempt to provide you with legal advice and it is not a substitute for representation by a lawyer.
Particularly when a divorcing couple cannot agree upon financial or parenting issues, the law can be complex. It applies to different couples in different ways, depending on their financial resources and needs as well as the needs of their children. If you decide you are ready to go forward with a divorce or separation, you should seek advice from a family law lawyer.
1. The legal meaning of divorce and separation
Australian law defines a divorce as the termination of a marriage, other than by death. A divorce ends a valid marriage. A divorce differs from an annulment, which declares void a marriage that was never valid. A marriage might not be valid if the marriage did not satisfy the legal requirements of the Marriage Act, if the marriage was induced by fraud or duress, or if one of the parties to the marriage was ineligible to be married (because, for instance, that party is already married, is too young marry, or is too closely related to the other party). A party seeking to establish that a marriage is void must apply to the court for a decree of nullity.
A separation exists when the parties to a marriage end their cohabitation that is, they begin living separately and apart from each other. A separation can occur when one spouse decides to stop cohabiting with the other spouse. The consent or agreement of both spouses to a separation is not required. Usually when parties separate one or both spouses will move to a different residence, but it is possible for spouses to live separately and apart (and thus to separate) even if they continue to occupy the same residence.
2. Grounds for divorce
To obtain a divorce in Australia, at least one spouse must be a citizen or must have been a resident of Australia for at least one year. Since a divorceterminates a marriage, a divorce will be granted only if the parties are married to each other and if the marriage is recognized as valid in Australia.
Australian law provides for a no fault divorce. The reason your marriage is ending is not an issue for the court to consider. The only ground for a divorce is the irretrievable breakdown of the marriage. An irretrievable breakdown exists when there is no reasonable likelihood that the parties willget back together.
An irretrievable breakdown can only be established by proving that the parties have been separated for at least one year.With one exception, the one yearperiod must be continuous. That is, if spouses separate for six months, resume cohabitation for four months, and then separate for another six months,they cannot add the two six month periods together to satisfy the requirement of a one year separation.
An exception to the continuous separation requirement exists if all of the following conditions are met:
The spouses resumed their cohabitation only one time during their separation;
They separated again less than three months after they resumed their cohabitation; and
They continued to live separately and apart until they applied for divorce.
If all those conditions are met, the court will consider the irretrievable breakdown to be established if the two periods of separation, added together, lasted for at least one year. The court will not, however, count the time during which the parties resumed cohabitation when deciding whether thespouses were separated for one year.
Since Australia has a no fault divorce law, a party who does not want a divorce generally cannot oppose the entry of a court order granting a divorce. Other than a technical argument that the court is without jurisdiction to grant a divorce, a divorce can only be opposed by arguing that the parties were not separated for a full year.
Written by Allan Weiss