In a world where marriage continues to evolve and redefine itself, it’s important to understand the legal nuances that accompany the dissolution of a marriage.
This article aims to provide clarity on the complexities of the Australian Family Law Act 1975, emphasising the critical importance of meeting a legal separation period, and providing guidance to those seeking to navigate the challenging path toward divorce..
Separation and Divorce
Separation and divorce are two different things that happen when a couple decides to end their relationship. Here’s what you need to know about both:
Separation is when a couple stops living together as a married couple but they’re still legally married. They might live in different homes or just lead separate lives. This can be a good option for those who need some time and space to figure things out, or for those who don’t want to officially end their marriage yet.
Divorce, on the other hand, is the legal ending of a marriage. This means the couple is no longer married in the eyes of the law, and they’re free to remarry if they choose. To get a divorce, there are certain steps that need to be followed, and it usually takes some time to complete the process.
The Family Law Act of 1975
The main law that guides family matters in Australia, like separation and divorce, is called the Family Law Act 1975. It sets the rules and ideas that help sort out everything related to family law issues.
A really important part of this law is the no-fault divorce idea. This means that when a couple gets a divorce, the court doesn’t blame anyone for the marriage ending. The only reason they need a divorce is that the relationship can’t be fixed, and this is decided by looking at certain conditions that must be met.
The Essential Elements of Separation
To establish that a marriage has irretrievably broken down, the Act outlines two essential elements that must be satisfied:
- Living separately: The couple needs to live apart, showing they don’t want to be together anymore. It’s important to know that they can still be separated even if they live in the same house, as long as they’re leading separate lives and it’s clear they want to end the marriage.
- Wanting to end the marriage: At least one person in the couple must clearly want to end the marriage and tell the other person about it. This can be done by talking about it or by showing it through their actions.
The Minimum Separation Period
Couples need to be separated for at least 12 months and one day before they can ask for a divorce. This waiting time gives them a chance to think things over, see if they can fix their relationship, or try to work things out with a mediator.
While being separated for those 12 months, couples might try to get back together and fix their marriage. If they do this for less than three months in total, they can still ask for a divorce once they have been separated for at least 12 months in total, excluding any periods of reconciliation. But if they get back together for three months or more, the 12-month countdown starts all over again.
Establishing the Date of Separation
Having a well-defined separation date is essential for both legal and practical reasons. It ensures that the minimum separation period is accurately observed and provides a basis for calculating the division of assets and financial entitlements during property settlement negotiations.
Knowing the exact separation date is important because it:
- Make sure you follow the rule of being separated for 12 months and one day before asking for a divorce.
- Helps work out how to divide everything you own together, like your house and savings, which might change based on when you separated.
- Make sure both of you know you’re separated and what that means, so there’s less chance of arguments later on.
Evidence to Support the Date of Separation
To establish the date of separation, it is important to gather evidence that can demonstrate the occurrence of both physical separation and the intention to end the marital relationship. This evidence may include:
- Communication with the Spouse: Records of conversations, emails, or text messages that indicate the intention to separate or end the marriage.
- Financial Arrangements: Evidence of separate bank accounts, changes in financial support, or the division of household expenses.
- Witness Statements: Testimonies from friends, family, or other acquaintances who can attest to the couple’s separation and the communicated intent to end the marriage.
Challenges in Determining the Date
Sometimes, figuring out when a couple actually separated can be tricky because of things like:
- The couple slowly growing apart without really deciding to end the marriage.
- Still living in the same house, making it hard to tell if they’re separated or just living together.
- Lack of communication between the parties regarding their intentions.
The best way to handle this is to be prepared: make sure to keep track of all the talks you have about the separation, start taking care of your own money matters, and ask a family law expert for help if you’re not sure about what you should or shouldn’t do. This will make the whole process easier and help you avoid any problems later on.
Important: You must (usually) be married for 2 or more years before applying for a divorce
Knowing the date of separation and waiting for at least 12 months and one day is the first thing to be sure of before you consider applying for a divorce.
The second key factor is the length of the marriage. So long as you have been married for at least 2 years (including the separation period) you are okay to apply for divorce.
However. if your married less than 2 years ago, then you will need either a special certificate showing you have tried counselling, or the leave (or permission) of the court to apply for divorce. Be sure to obtain legal advice from a Family Lawyer if this affects you.
As the adage goes, “a stitch in time saves nine.” Armed with knowledge and the guidance of seasoned professionals, you can ensure your legal journey is smooth, efficient, and ultimately beneficial for all parties involved. If you find yourself at the crossroads of separation or divorce, don’t hesitate to contact Arbon Legal Group.
Our team of compassionate and experienced family lawyers will guide you through the complexities of the process, weaving together a resolution that respects both your rights and your emotional well-being.