The answer to this question is that the law requires a married couple to be separated for a period of 12 months. Determining how long a couple have in fact been separated, in accordance with the law, can sometimes create problems in divorce applications.
Section 49 of the Family Law Act 1975 allows for separation to be held to have occurred even if cohabitation was brought to an end by the action or conduct of only one of the parties. Even if the parties continue to reside in the same household or render some household services to the other, this will not necessarily impact on the period of separation. Often, separation occurs without either party leaving the matrimonial home. This is known as “separation under the same roof”. For separation to be established, it is essential to prove that at least one party had an intention to terminate the marriage and communicated this intention to the other party directly or indirectly.
Where separation took place wholly or partly while the parties were living under the same roof, corroborative evidence by a witness must be provided. This is usually a neighbour, friend or relative who is familiar with the circumstances in which the parties have been living.
Where the separation date is disputed, the court may consider many factors surrounding the nature of the marriage including:
- Living under the same roof: whilst it may be that this fact is likely to have considerable importance, the law has emphasised that this factor alone is not decisive and that its importance will vary from case to case.
- Intimacy: if sexual relations are no longer existing between the parties, this may be a factor suggesting that the parties have separated. However, in several cases it has been held that the parties have “separated” despite the occurrence of acts of intimacy from time to time.
- Mutual society and protection: payments by one party to the other do not necessarily indicate that the marital relationship still exists. Such payments may be made as a matter of habit or convenience or because the person making the payments considers that the other party would be likely to obtain a maintenance order if the payments were not made voluntarily.
- Nurture and support of children of the marriage: parties may remain living together after the marital relationship has ended merely so that the children have minimum disruption.
- Communication of intention to separate finally: in some instances a party might make it clear to the other by words or actions that he or she is intending to bring about the termination of the marriage. Sometimes however, the question arises as to whether the parties can be considered to have separated when one party believes that the marriage is still on foot and the other has not communicated to the contrary.
- Resumption of cohabitation: cohabitation is not resumed merely by casual encounters, even if acts of intimacy occur. There must be an intention to resume cohabitation. Under Section 50 of the Family Law Act 1975, if the parties resume cohabitation on one occasion, but, within a period of 3 months after the “resumption of cohabitation”, they again separate, then the periods of separation before and after that short resumption of cohabitation may be added together to make up the period of 12 months separation that is required for making an application for divorce.
A party making an application but who has been married for less than 2 years, is required under Section 44 (1B) of the Family Law Act 1975, to file a certificate confirming that they have considered reconciliation with the assistance of a marriage counsellor, unless the Court is satisfied that there are special circumstances by reason of which an application for divorce should proceed, despite counselling not having taken place.
If you require an explanation of any of the matters set out in this article then you can contact Don Gayler or Georgia Johnson on 4124 7100.
We can provide a plain English explanation of how divorce will work for you. Remember, if you are in the process of considering obtaining a divorce from your partner then you want the best outcome so you can to move onto the next stage of your life.