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Family Law

What does being separated entail for the purpose of applying for a divorce?

By July 28, 2016No Comments

By Sharla Stevens

In order to apply for a divorce you must be separated and living separately for 12 months. Most of the time this isn’t an issue. There may be occasions, though, where even if one party has moved out of the house the Court may still not consider that you have separated. If you both continue to act as a married couple, including maintaining a regular sexual relationship, attending social functions together, staying in hotel rooms together and operating a joint bank account, despite living separately, then the Court may not accept that you are in fact separated and may not grant your divorce.

When applying for a divorce the test is whether you were separated for 12 months at the time of filing an application for divorce, so even if you have been separated for 12 months by the time of your divorce hearing this will not be sufficient. It must be 12 months on the day you first file your application.

There are three elements which constitute a finding that a separation has occurred:

  1. An intention to separate;
  2. Action upon that intention; and
  3. Communication of that intention to the other party.

If the court determines that you were not separated for 12 months at the time of filing an application for divorce then the application will be dismissed and you will need to re-file an application once you have been separated for 12 months.

If you have any queries about when you are eligible to apply for a divorce or need assistance with an application for divorce please contact Cristina Huesch or one of our solicitors Sharla Stevens or Angela Li on (02) 6223 2400.

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