The Family Law Act 1975 (Cth) provides only one ground for divorce in Australia. This is that the marriage has broken down irretrievably. This is only evidenced if the parties are separated and have lived separately and apart for not less than twelve months. An application for a divorce order can only be applied for and a divorce order made after a minimum of twelve months separation.
In determining whether the relationship has irretrievably broken down and the parties have separated there needs to be:
1. An intention of one or both of the parties to sever and discontinue the marital relationship.
2. Where one party alone considers the marriage has ended, that party communicates this to the other; and
3. The party(ies) act on that intention, and act as though the marriage has ended.
Commonly couples, often for economic reasons, may live whilst separated under the one roof. Parties who live under one roof during all or part of the period of separation will be required to file Affidavit evidence from a third party, which establishes precisely what the arrangements were, such as separate bedrooms, informing others that the marriage is over and the like. This is to satisfy the Court that the separation is genuine and that the marriage has irretrievably broken down.
Finally, an Application for Divorce may either be applied for by one party or by them together as joint applicants. Where an application has been made by a single party and there are children of the marriage under the age of 18, one party or their solicitor is required to attend Court to advise about care and child support issues concerning those children. In situations where the application is joint, divorce orders are usually made in the absence of the parties.
If you have any questions in relation to divorce, it is important to seek legal advice, as there are many factors that may influence whether or not the orders shall be made by the Court.
Nathan Avery-Williams of our office is happy to answer any questions you may have.