Family Law

Separation & Divorce

Separation

What is separation?

Separation occurs where one party to a marriage or de facto relationship: forms the intention to sever the parties’ relationship, acts on that intention, and communicates that intention to the other party. Often, the date of separation is marked by one party leaving the residence that both parties once shared. However, separation may occur notwithstanding the fact that the parties have continued to occupy the same residence; this is called ‘Separation under the one roof’.

Separation under the one roof

It is possible to be separated under the one roof if certain criteria are met. If you are separated under the one roof, it is very important to get legal advice. The Separation & Divorce Solicitors at JurisBridge Legal in Sydney can help you.

Factors that may indicate that the parties are separated under the one roof include, amongst other things:

  • Whether the parties have made an effort to physically separate themselves within the household and live independently from one another;
  • Whether the parties share living spaces such as bedrooms, bathrooms, and other living areas;
  • Whether the parties do their own: shopping, cooking, cleaning, household maintenance and gardening or have a roster/agreement similar to being in a share household;
  • Whether the parties have ceased any sexual relationship (although not conclusive, the presence of a sexual relationship would generally support the conclusion that the parties remain in a committed relationship);
  • Whether the parties have established new relationships (including sexual relationships) with other persons;
  • Whether the parties have separated their finances (such as closing joint bank accounts and opening individual bank accounts instead);
  • Whether the parties have told their family and friends that their relationship has ended;
  • Whether the parties attend social functions together (lunches, dinners, parties etc.);
  • Whether the parties go out separately with their own friends;
  • Whether the parties have distanced themselves physically and emotionally from the other (withdrawal of intimacy, disregard for each other’s long-term plans, and a lack of support);
  • Whether the parties share information and communicate with each other;
  • Whether the parties have any jointly held plans for the future;
  • Whether the parties would help the other if there was a personal or family crisis.

Separation and time limitations

The date of separation is important for a number of reasons. These include:

  • Married persons cannot apply for a divorce unless they have been continuously separated for at least 12 months;
  • In the case of a former marriage, once the parties have been divorced for 12 months, a party is unable to apply to a Court to seek Orders for the division of matrimonial property or Spousal Maintenance, without first seeking the Court’s permission; and
  • In the case of a former de facto relationship, once the parties have been separated for 24 months, a party is no longer able to apply to a Court to seek Orders for the division of joint property or Maintenance (financial support from the other party), without first seeking the Court’s permission.

Divorce

Divorce is simply the formal dissolution or ending of a marriage. In Australia, we operate under a “no fault” divorce system. As a result, there is one sole ground for Divorce, being the irretrievable breakdown of the marriage as evidenced by 12 months’ separation between the parties to the marriage. However, separated persons are able to resume their relationship once for a maximum period of 3 months without the 12 months’ time limit being reset.  Additionally, if the parties have been married for less than 2 years, they will have to participate in marriage counselling prior to applying for Divorce.

How do I apply for Divorce in Australia?

To apply for an Order for Divorce, an application must be filed with The Federal Circuit and Family Court of Australia.

Parties to a marriage can file for a Divorce together (joint application) or a Divorce application can be filed by one party only (sole application).

To be eligible to apply for a Divorce in Australia, it must be proven to the Court:

  1. That at least one of the parties to the marriage:
    • Was born in Australia or has become an Australian citizen by descent;
    • Is an Australian citizen by grant of Australian citizenship; or
    • Is lawfully present in Australia and intends to continue living in Australia. The party must have been living in Australia for at least the past 12 months and be able to prove this.
  2. The marriage has broken down and there is no reasonable likelihood that the parties will get back together;
  3. The parties have been separated for at least 12 months; (notwithstanding the previously explained exception)
  4. There was a valid marriage;
    This is generally proven by producing a copy of the marriage certificate. If the parties were married overseas and the marriage certificate is not in English, then it will need to be translated into English for a copy to be sworn.
  5. If the parties have a child or children under 18 years of age, it must be shown that appropriate care arrangements have been put in place for them; and
  6. If the application for divorce is a sole application, then the party who has filed the application is required to serve the application on the other party.

What to do if you cannot find your original Marriage Certificate?

If you cannot locate your original Marriage Certificate, if possible, provide a copy or certified copy of the original Marriage Certificate to your lawyer.

However, there may be situations where there is no certificate of marriage. This can occur in a number of circumstances such as:

  • no certificate was issued;
  • the marriage was not registered;
  • the original certificate has been lost or destroyed and it is not possible to obtain it.

After all reasonable attempts are made and a copy of the marriage certificate cannot be obtained, the applicant must prove the marriage by filing an Affidavit which gives details about the time and place of the ceremony and confirms the party understood the ceremony to be a marriage ceremony.

How we can help

The Family Law team at JurisBridge Legal are experts in matters of Separation & Divorce.

If you are looking for an experienced, supportive and patient Separation & Divorce Lawyer in Sydney, or would like help with any other Family Law matter, the friendly team at JurisBridge Legal would be glad to assist you.  You can leave us a message here or call us on 02 8355 3737 or 1300 559 888 today for more information.

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+61 2 8355 3737
familylaw@jurisbridge.com.au

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Sydney NSW 2000

 

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