Separation and divorce

Divorce dissolves the legal bonds of marriage. It does not deal with issues such as who the children live with, who supports them or the division of property. SEE: CHILDREN and PROPERTY.

All divorces are dealt with in the Federal Magistrates Court.

A couple must be separated for twelve months and there must be no possibility of a future reconciliation before either can apply for a divorce. This alone indicates that the marriage has suffered irretrievable breakdown, which is the only ground for divorce under the Act. It does not matter who was at fault or whether one spouse does not want a divorce. The twelve month period begins the day one or both leave the marriage. One partner does not usually have to inform the other that the separation has begun [Tye v Tye (No.1)(1976) FLC 90-028]. Separation does not automatically begin where a couple are living apart for reasons such as work transfer, illness or imprisonment. As long as they continue to treat each other as husband and wife, they are not legally regarded as separated. In these circumstances, one partner must inform the other that the separation has begun before the twelve month period begins. However, where there is evidence that one of them has started living with someone else or where contact is not maintained by regular letters or visits, the court may presume that the separation has begun.

Isolated acts of sexual intercourse do not break the separation period [Feltus (1977) FLC 90-212].

Separation under one roof

A married couple can live separately and apart while still living in the same house, but it must be shown that one or both of them has left the marriage relationship and that they live independently of each other. As each marriage relationship is different, the facts showing separation under one roof vary from case to case.

Normally it is necessary to show that the couple do not share any of the usual activities of marriage, such as sleeping, eating or going out together. One of them can perform household services, such as ironing or washing, for the other, where it is necessary for the running of the home and the convenience of others who live there. It may be easier to show a couple are separated under one roof if there were reasons why the couple had to remain together (such as not being able to afford separate homes or for the sake of the children) and that they intend to live apart in the near future. The intention to continue living under the one roof might indicate a reasonable likelihood of reconciliation.

Spouses intending to live separately under one roof should make sure that others know that they are separating, as the Court requires a written statement affidavit from both the applicant and from a neighbour, friend or relative (corroborative evidence) that there was a separation. Although not necessary, it is also a good idea for one partner to say to the other that the marriage is over, so that there is no confusion between them and neither partner holds an unrealistic hope of reconciliation.