Understanding your rights, responsibilities and obligations
It is important to understand your rights, responsibilities and obligations during the process of separation and divorce as decisions made at this time may have consequences for both you and your family.
Separation is defined by Section 49 of the Family Law Act 1975 as follows:
- the parties to a marriage may be held to have separated notwithstanding that cohabitation was brought to an end by the action of conduct of only one of the parties.
- the parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
Separation only requires one of the parties to have that intention. Evidence of a marriage having come to an end is based on the accepted factors which evidence a loving marriage including financial interdependence, a recognition that there exists a relationship both in private and in public, sexual relations between the parties are no longer features of the relationship. It is then said that the marriage is irretrievably broken down.
A further factor is whether the parties care jointly for any children and whether the parties still support and protect one another.
The parties must satisfy the court that they are legally married.
Application for Divorce
An Application for Divorce can be made if the following conditions are met:
- the parties have been separated for at least twelve months before they can apply for divorce. This is the only ground for a divorce. The family law jurisdiction in Australia is a no-fault jurisdiction. There is no consideration regarding the cause or blame for a relationship breakdown. The only ground is there being an irretrievable breakdown of the marriage.
- the parties can apply for a divorce if they remain living separately and apart but under the same roof for twelve months. This is often the case if one or other of the parties cannot afford to vacate the property or do not wish to vacate the property due to unresolved property settlement issues. A party relying on living separate but apart under the one roof will be required to present evidence to the court by affidavit satisfying the court of separation in those circumstances.
If there are children of the marriage under 18 years of age, the court will not grant a divorce unless there is evidence that proper arrangements are in place for the care of the children.
A divorce certificate is issued and the divorce becomes final, one month and one day after a divorce order is granted. The parties are free to remarry once a divorce certificate issues.
A divorce formally ends the marriage but does not address or resolve children, property or other financial matters of a relationship breakdown.
We can help with current or future family law issues or estate planning matters.