12 months separation requirement when applying for a divorce
Australia’s divorce rules are quite straightforward. It only requires one party to file for divorce, but that person must have informed the other party of his or her intention. The main criterion is that the parties must have been separated for more than 12 months prior to filing a divorce application. Once this time period has been met the two parties are free to re-marry.
Legal separation is not simply showing physical separation between the parties for the twelve month period. Evidence has to be shown that the marital relationship has irretrievably broken down and that neither party intends to resume the relationship.
Physical separation is one area that specifies the parties do not necessarily need to be in separate residences. It’s absolutely essential to provide an affidavit detailing the provision made in the residence for sleeping and other arrangements; for bank accounts and the sharing of household facilities. You will also require a witness who will submit an affidavit stating that you are living separate lives.
You may try and have another go at your relationship and move in together again and live as you were before the separation took place. In genuine cases of reconciliation you would just resume your normal lives, but if it doesn’t work out and, as long as the reconciliation does not exceed three months, you can still count this period of cohabitation in the required 12 months of separation before a divorce can take place. If the reconciliation exceeds three months you have to begin the 12 month period of separation all over again.
If you have already filed for divorce but you start to cohabit again, the court may refuse your divorce application. The party wishing to show the reconciliation must bring evidence in support of his or her argument. However, reconciliation after filing for a divorce does not mean your application will automatically be denied. The court will look at your unique circumstances and make a decision based on that.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.