Divorce – showing that you have separated

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January 31, 2013 by Todd

In order for you to obtain a divorce, you must prove that you and your spouse have been separated for at least 12 months immediately before you file your divorce application.  Seems simple?  Not always.

How to prove separation?

The law is relatively clear on this point.  Where you are no longer living together, you must separate intending that the marriage is over.  That is different from, say, a trial separation in the hope that the marriage will survive.  You must act on the intention.  How is the marriage different after separation compared to before separation?  Finally, you must communicate your intention to separate to your spouse in some way.

Fairly simple?  Not necessarily if you and your spouse separate under one roof or live together again after you separate.

Separation under one roof

It is a reality for a lot of people these days that separation is not followed by a change in living arrangements.  Much of our wealth is often tied up in the matrimonial home.  Neither your nor your spouse may have the ability to buy a second home or even rent a second home for one of you to live in.  Your parents may have reached retirement age and downsized to a smaller house.  You and your spouse may be stuck living together.

The good news is that separation can occur where you and your spouse are still living together.  The bad news is that one of you may think you have separated, while the other may not.  You may need to prove that you have separated.  The Court will be wary about a false claim of separation being made to get an early divorce.  It can become a very complicated exercise to establish when you actually separated.

A Court will look at a number of matters when deciding whether you have separated.  Those matters include:

a) Whether you have slept in separate beds;

b) How often you provided ‘domestic services’ for each other (such as cleaning, cooking);

c) Whether you kept your finances separate;

d) Whether it was known among your friends and family that you had separated;

e) What you had told government departments such as Centrelink about the status of your marriage.

It is often a good idea to keep a diary and make notes in these circumstances.

Resumption of cohabitation

The law allows for spouses who have separated to give their marriage another shot.  You are allowed to resume your marriage for one period of up to 3 months without losing the benefit of an earlier period of separation when calculating the 12 month period required to file for divorce.  The period of ‘resumption’ is not counted, but the periods before and after are counted.

Again, as is the case with separation under one roof, you and your spouse can have different views about whether resumption had occurred and for how long it lasted.  It is important to be clear with your spouse, and to keep good diary notes.

Divorce can be a complicated area.  It is in your interests to get good legal advice early. Let our knowledge be your edge.  Contact us now.


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