We're separated, I can apply for Divorce at any time, right? - Common Misconceptions Part 2
Unlike Kim Kardashian, in Australia, you cannot marry someone on one day, only to decide that was the wrong decision and file for divorce 72 days later.
Instead, the law recognises the fragility and “ups and downs” of relationships, requiring that the marriage has broken down irretrievably. Contrary to popular belief, it is not relevant why the relationship broke down, just that it has. This means that the Court does not consider factors such as infidelity.
To show that the marriage has broken down irretrievably, it must be shown that the parties have lived separately and apart for at least 12 months before being able to apply for a divorce. If one person moves out but moves back in, to give the marriage another shot, for example, this is taken into account when determining the required 12 months of separation. If the couple lives together on one occasion for less than three months, or any other not substantial period of time, that time is not calculated in determining the 12 months period.
Separation can also occur while the parties are still living together, so long as it can be demonstrated that the marriage had irretrievably broken down and the parties were living separate lives. There must also be some communication between the parties making it clear that their marriage is over, which often includes a conversation between them, or from one to the other. This evidence must be provided to the Court if you are seeking to apply for Divorce while living under the same roof, or while having lived under the same roof in the 12 months prior to filing.
The only time the 12 month separation rule is altered, is when it has been less than two years since the parties married, at the time when they are applying for Divorce. In these circumstances, a certificate to show that counselling has been attended and reconciliation considered, with an approved family counsellor, must be filed. Alternatively, and rarely, you may provide evidence to the Court that special circumstances exist such that it would not be appropriate to attend counselling together.
Another misconception about divorce is it’s relationship to property settlements. To clarify, a divorce is simply the legal ending of your marriage – it is almost completely separate from the division of assets. The only intermingling of these two issues is that, once you are divorced, you only have 12 months to commence proceedings for property settlement or maintenance, without permission being required from the Court.
Contact us, for further information about this important topic.