Separation and Divorce
Separation and Divorce
Separation and divorce are often spoken about interchangeably; however, they are two distinct, separate stages in the breakdown of the relationship.
Separation is the first stage in the breakdown of a relationship and occurs when one, or both partners decide to end the relationship. Separation can occur in either a de facto relationship, or a marriage. Whilst there is no formal legal process required to ‘separate,’ in that you do not need to apply to a Court or Government organisation to get a separation, the date of separation is important, as it can affect decisions around property settlement matters, children and parenting matters and, for married couples, it can affect their eligibility to apply for a divorce with the Federal Circuit and Family Court of Australia.
In Australia, divorce is the legal process that formally ends a marriage. Divorce is the final step in the separation journey, and you can only make an Application for Divorce with the Federal Circuit and Family Court of Australia after you have been separated for at least twelve months.
Unlike many other countries and jurisdictions, Australia operates under a ‘no-fault divorce system,’ which means that when applying for a divorce, the Federal Circuit and Family Court of Australia does not consider who was at fault, or why the marriage ended. The only requirement is appropriately demonstrating that the marriage has broken down irretrievably, with no reasonable chance of reconciliation and the parties to the marriage have been separated for at least twelve months. In the event that yourself and your spouse have lived in the same home, or ‘separated under the one roof,’ for part, or all of the requisite twelve-month separation period, you will need to provide additional information to the Federal Circuit and Family Court of Australia, by way of a supporting Affidavit at the time of filing your Application for Divorce.
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Important Information and Time Limitations
- Separation: You must be separated for a period of at least twelve months for an Application for Divorce to be accepted.
- No-Fault Divorce: Australia has a ‘no-fault divorce.’ That is, when granting a divorce, the Federal Circuit and Family Court of Australia does not consider who was at fault, or why the marriage ended. Under the Family Law Act 1975 (Cth), the only grounds for divorce in Australia are the irretrievable breakdown of the relationship, which recognises that marriages can end for a variety of reasons.
- Duration of Marriage: If you have been married for less than two years, the Federal Circuit and Family Court of Australia requires evidence that both yourself and your spouse have attended counselling, before a divorce can be granted. This evidence can be submitted by way of a certificate of attendance, at the time of filing your Application for Divorce.
- Considerations: Whilst a divorce legally terminates a marriage, the granting of a divorce does not decide issues about children and parenting matters, property and financial matters, or maintenance matters.
- Time Limitations: You have twelve months after your divorce is finalised to apply for property settlement, or spousal maintenance through the courts.
At Cahill Family Lawyers, we can help you understand your rights and obligations, prepare your Application for Divorce, and ensure that these matters are addressed property, and in a timely fashion. Whether your separation is amicable, or more complex, we’re here to support you at every state.
Disclaimer:
The information provided on this page is of a general nature and does not constitute legal advice. Separation and divorce matters can be complex and vary significantly depending on individual circumstances. We recommend you contact our office directly for tailored legal advice, suited to your individual needs and circumstances.