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. 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 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 children and financial issues. You can resolve those issues at any time during separation. Further, in the event you are unable to resolve your financial and children 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 house 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 house 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.
For further information please contact:
Annette Wilson, Partner
Phone: +61 2 9233 5544
Email: amw@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
