The simple answer to the question, “How long must I be separated to get a divorce?” is that the law requires a married couple to be separated for a period of 12 months. But determining for how long a couple has been separated, in accordance with law, can sometimes created problems in Divorce Applications.
Section 49 of the Family Law Act 1975 explains that separation may be held to have occurred even if cohabitation was brought to an end by the action or conduct of only one of the parties, and even if the parties continued to reside in the same household or rendered some household services to the other. Often, separation occurs without either party leaving the matrimonial home – this is known as “separation under one 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 one 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:
If you are making an Application for Divorce but have been married for less than two (2) years, under section 44(1B) of the Family Law Act 1975, you are required to file a certificate confirming that you 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 having not taken place.
The brief explanation above regarding the requirement to be separated for 12 months before applying for a divorce shows that sometimes, determining whether the parties have in fact separated and for how long, is not always a simple task.
Our divorce lawyers are experienced in dealing with Divorce Applications that are not straightforward, having assisted hundreds of clients over the years. We can help you, too.
We have offices in Sydney, Chatswood, Parramatta, Sutherland and Wollongong.
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