Cohabitation of Spouses after filing an application for Divorce

In applying for divorce in Australia, there are several requirements that should be established in order for the Court to be satisfied that the separation of spouses is the only reasonable outcome of their relationship.

Under the No-Fault Divorce system in the country, the sole ground for a Divorce is that the Marriage has broken down irretrievably under s48(1) of Family Law Act 1975 (Cth). In this system, the couples who wanted to be separated must show that their marriage is no longer working out due to their estranged relationship.

In order for the Court to be satisfied with the requirement that the Marriage has broken down irretrievably, the couple must be at least separated and lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution. This requirement is embodied in the provision of the Family Law Act 1975 under section 48(2). The Court would not be concerned for the reason of the separation but only to the fact that the separation indeed occur.

However, the Family Law Act allows a brief Cohabitation of the spouses without nullifying the 12-month separation requirement of the Divorce. Stated otherwise, the Couples, in the process of filing a Divorce, may still cohabitate and live together under 1 roof without invalidating the 12-month separation requirement. To be specific on the conditions of Cohabitation under a Divorce Process of the Family Law Act 1975, the spouses must show the following:

• They have been initially separated;
• The Cohabitation only happened once;
• That the Cohabitation must be only within three months and the parties separated again; and
• After the Cohabitation and the date of filing the application, there must still be a period of separation.

It should be noted that the period of separation must still be up to 12 months and that the Cohabitation took place within this period with separate periods taking place before and after the Cohabitation.