Separation & Divorce

Separation

Separation occurs when one person in a marriage or de facto relationship communicates to the other that the relationship is over.  Usually, separation is marked, by one partner leaving the home that you both once shared.

What is separation under one roof?

Sometimes couples remain living together even though their relationship is over.  This could be for financial reasons, for the sake of the children or until you come to an agreement about the division of your matrimonial/de facto property.

It is important, if you intend to be separated under one roof, that you make certain changes to your day to day life so you can prove, if necessary, that your relationship ended when you intended it to.  Some of these things are:

• to advise your friends and family that your relationship is over;
• cease any sexual relationship;
• move into different bedrooms (if this is possible);
• As much as possible live separate lives, eg stop attending social events together, stop having dinner together, stop sharing household tasks and so on. It is almost as though you are living as flatmates instead of partners;
• Separate your finances;
• Adjust any joint tenancy over property you own together so that you own that property as tenants in common, pending your property settlement.

You will be required to prove your separation under one roof when you apply for a divorce.  Often your evidence will need to be corroborated by someone else who is familiar with your personal circumstances.  This can be a family member, neighbour or close friend who can give evidence about having known you before your separation and confirming that they have observed changes to your living arrangements after your separation.

The date of your separation is important for the following time limitations:

• You are not able to get a divorce until you have been separated for 12 months;
• If you are in a de facto relationship, you are not able to ask the Court (except with the Court’s permission*) for Orders about dividing your joint property or for financial support from your de facto partner once you have been separated for more than 2 years;
• If you are married, you are not able to apply to a Court (except with the Court’s permission*) for Orders about the division of your matrimonial property or for spousal maintenance once your divorce has been finalised for 1 year.

*You are always able to ask the Court for “leave” (which in non-lawyer speak means permission) to make an Application outside of this time.  The Court, however, does not always grant permission so it is sensible to comply with the time limitations if at all possible.

Divorce

A divorce is simply the undoing of your marriage – almost like a marriage certificate in reverse.  In order to get a divorce, the Court has to be satisfied that your marriage has irretrievably broken down.  The only evidence the Court needs that your marriage has irretrievably broken down is that you must be separated for a period of 12 months. You are able to have one period of reconciliation up to 3 months after you have separated.  If this is the case, you simply add the period before your reconciliation and the period after your reconciliation such that the total period of separation adds up to 12 months.  If you reconcile for longer than 3 months, the clock starts again and you must be separated for 12 months before you will be eligible to apply for your divorce.

You can apply for a divorce on your own or jointly with your husband/wife.

Applying for a divorce on your own

A divorce kit can be downloaded from the Federal Circuit and Family Court of Australia website.  It takes you through all the steps you need to complete your divorce application including how to efile it.  If you would like help with your divorce application, please do not hesitate to contact us. You will need to have a certified copy of your marriage certificate to upload onto the Commonwealth Courts Portal (if you are efiling) or to attach to your divorce application if you submit the document in person with the Court.

Once you have submitted your divorce application into the Federal Circuit and Family Court of Australia (this is called “filing”), it needs to be provided to your wife/husband.  This is called “service”.   When you file your Application, you will be given a date on which your Application will be heard.  You must serve the Application on your husband/wife 28 days before the Application is due to be heard if they live in Australia and 42 days before the Application is due to be heard  if they live overseas.  You must be able to prove to the Registrar (the judicial officer who will deal with your divorce application), that your wife/husband has been served.  You are not allowed to personally serve the divorce application yourself.  Service can be effected in the following ways:

• By post;
• By using a process server;
• By getting someone you know to serve the document on your wife/husband.

When you serve your divorce application, you must also provide the following documents:

• A Federal Circuit and Family Court of Australia Brochure called Marriage Families and Separation;
• An Acknowledgement of Service

If you are confident that your husband/wife will sign and return the acknowledgement of service form, you should post it with your divorce application and the Marriage Families and Separation brochure with a self-addressed, stamped envelope requesting your husband/wife to sign, date and return the Acknowledgement of Service form in the envelope.  When you receive the Acknowledgement form back, you need to sign a statement (called an affidavit) confirming that the signature is that of your husband/wife.

If you are not confident that they will acknowledge service, it is sensible to use either a process server or a friend to serve the document personally on your husband/wife.  They can ask the person to sign the Acknowledgement at the time of service.  They will then need to swear/affirm a statement called an affidavit confirming that they served the document.

The affidavits of service need to be filed in Court prior to the day on which your matter is heard to prove to the Court that you have served the documents on your husband/wife.

Sometimes, getting your own divorce can be complicated. If you require assistance, please do not hesitate to contact us.

Applying for your divorce together

If you apply for a divorce together, none of the service requirements apply.  You can also elect not to attend Court when your Application is dealt with.