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Reconciliation and what it means in Family Law - Part 3

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RECONCILIATION AND DIVORCE

Following the first 2 Parts of our Reconciliation Series, this blog now explores the impact of reconciliation and divorce. 
Firstly and most importantly, where parties were married for less than 2 years, section 44(1B) of the Family Law Act requires them to “have considered a reconciliation” with the assistance of a specified person or organisation prior to applying for a divorce.This means that an application will not be considered until the parties have attended some type of dispute resolution conference or counselling where reconciliation was discussed with a professional, and all involved agreed that there was no chance of reconciliation. The court may refuse to grant a divorce order, if it is not satisfied that the parties have adequately considered the possibility of reconciliation. 
Secondly, the court requires that parties applying for a divorce must have been separated for a minimum of 12 months. Reconciliation may be attempted within this time period. The parties may even resume cohabitation, with section 50 permitting separated spouses to resume cohabitation for a period of up to (but not including) three months, without this annulling any prior period of separation for the purposes of building up the 12 months’ separation required. If after such a resumption of cohabitation the parties separate again, they can add the prior period of separation to the subsequent period and thereby build up the 12 months’ separation required. The purpose of section 50 is to encourage reconciliation between separated spouses, who might otherwise be hesitant to resume cohabitation if this would nullify the prior period of separation in the event reconciliation were to fail. 
 
In the Full Court decision of Clarke and Clarke (1986) FLC 91-778, a distinction was drawn between reconciliation and the resumption of cohabitation. It was determined that reconciliation implies a settling of differences or a restoration of friendship.  The resumption of cohabitation involves an intention to resume a matrimonial relationship and demonstrates an action upon that intention. As such, the Court may be required to exercise discretion to determine the extent to which the parties’ reconciliation or resumption of cohabitation will impact upon the time limitation to apply for divorce. This can complicate the divorce process and you may require the assistance of a lawyer to ensure that the court is provided with adequate information to proceed. 
 
If a divorce order is granted but has not taken effect, section 57 of the Family Law Act enables the court to discharge a divorce order “on the ground that the parties have become reconciled”.  To avoid any doubt, there is one month and one day between the divorce order being made, and it taking effect. If the court finds that the divorce order is to be discharged, the parties will remain legally married. However, in the event that the parties reconcile after the divorce order taking effect, the parties will be legally divorced. 
Once the divorce order has taken effect, the parties may remarry upon reconciliation, if they wish to do so. The parties may wish to enter into a pre-defacto, or pre-marriage, Financial Agreement under the relevant Act, depending upon their circumstances. This is a complex area of law, and one in which our lawyers have substantial experience.  Please contact us to ensure that you are aware of the implications of a reconciliation following a divorce. 

 

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Friday, 07 May 2021

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