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What is the difference between separation and divorce for married couples?

Separation and divorce

Separation and divorce, although interrelated, are different concepts in Australian law.  Separation occurs where one or both spouses form the intention to sever, or not to resume the marital relationship, and act on that intention.  Separation does not necessarily require physical separation; it is merely the result of breakdown of the matrimonial relationship.  Divorce on the other hand is the formal dissolution or ending of a marriage in the form of a divorce order upon application to the Federal Circuit and Family Court of Australia.  The granting of a divorce order allows the parties to remarry should they wish.

Can my former partner and I be separated whilst continuing to live together?

Separation does not necessarily require physical separation.  Separation may occur notwithstanding the fact that the parties continue to live under the same roof.  If you have separated under the one roof, it is highly recommended you get family law advice.  Our team of North Shore and Northern Beaches family lawyers at Doolan Callaghan Family Lawyers can assist you.  If a court must decide whether a separation under the one roof has occurred, it will ask whether a substantial breakdown in the marriage has occurred.  The factors that will be considered by the court will depend on the unique facts of the case as every relationship is different, however, a common theme is to test whether the evidence shows that the parties are practically living in ‘two households, not one’.

Some factors that may show that the parties have separated under the one roof, include but are not limited to:

  • Whether the parties continue to share the same bed and/or bedroom.
  • Whether the parties have ceased any sexual relationship between them (although not decisive, the presence of a sexual relationship particularly an ongoing one is typically indicative of a couple that has not separated).
  • Whether the parties do their own household chores separately such as cooking, cleaning, washing, and shopping.
  • Whether the parties have separated their finances.
  • Whether the parties have established new relationships (including sexual relations) with other persons.
  • Whether the parties have communicated to their families and friends that they have separated.
  • Whether the parties continue to attend social functions together.
  • Whether the parties have any jointly held plans for the future.

How do I apply for a divorce in Australia?

Australia operates under a ‘no fault’ divorce system.  There is one sole ground for divorce, being the irretrievable breakdown of a marriage as evidenced by 12 months separation between the parties.  Married persons can however resume their relationship once for a maximum period of 3 months without the 12-month time limit being reset.  Further, if the parties intending on divorcing have been married for less than 2 years, they must attend marriage counselling prior to making their divorce application.

A party to marriage can apply for a divorce without their spouse’s consent or involvement (a sole application) or together with the other party to the marriage (a joint application).  In Australia, an application for divorce is made to the Federal Circuit and Family Court of Australia.  The specialist divorce lawyers at Doolan Callaghan Family Lawyers can assist you with every step of the application including the preparation and filing of the relevant court documents and making an appearance on your behalf before the court if necessary.

If your marriage has irretrievably broken down, you should seek legal advice to discuss your options.  The specialist family lawyers at Doolan Callaghan Family Lawyers have a combined experience of over 80 years and are one of the largest family law specialist firms on the North Shore and Northern Beaches.  Please do not hesitate to contact us for expert legal advice that is tailored to you and your specific circumstances.

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