With the introduction of the Family Law Act 1975 (Cth) (the Act), the only grounds for divorce in Australia is the “irretrievable breakdown of a marriage”.

When demonstrating that the marriage has irretrievably broken down, a couple must have separated for at least 12 months as outlined in s 48 of the Act.

When determining whether a separation has occurred, there are a number evidentiary requirements that must be demonstrated to the court in order to satisfy that the “irretrievable breakdown of a marriage” has occurred.

Date of separation

Determining the date of separation is essential for a number of reasons that include some of the following:

• the date that an application for divorce can be filed;
• when child support becomes payable;
• when Centrelink benefits become payable;
• how property settlement will be calculated by the court.

What are the indicators that demonstrate there has been a change in the marital relationship?

There is of course no uniform way in which marriages should be conducted, and the law does not attempt to define how a married couple should behave.  Instead, the court will look at evidence showing that there has been a change in the overall character of a relationship.

The reasoning behind why the court will look to any changes in the overall character of a relationship is essential if there is any dispute that may arise in relation to the date of separation.  Consequently, the court will look at the entirety of the circumstances of the relationship pre and post-separation.

Some of the factors that the court may consider when determining separation can include:-

• whether the parties live together,
• whether they continue to have sexual relations,
• complete household duties for one another such as cooking and cleaning,
• present themselves as a couple out in public,
• jointly care for any children, and
• whether they support or protect one another

These may be some of the situations that the court may consider.

Although some of the aforementioned indicators may be taken into consideration, it should be reemphasised that the absence of the indicators does not within itself signify that the marriage has come to an end and that there is no formula that is indicative that the marriage has reached its conclusion.

Is it essential that both parties wish to separate?

It is only necessary for one party to wish for the marital relationship to come to an end, thereby, establishing separation if the process was undertaken in accordance with the law.

However, it must be communicated to the other spouse that one spouse wishes to sever the relationship and it must be clearly pointed out that the marriage is unambiguously over.

Can separation under one roof be possible?

In the event that one spouse has communicated to the other that the marital relationship is over, or both parties have accepted that the relationship is over and separation has occurred, there is no requirement that the parties must live separately outside of the marital home.

Separation means that it is really a

“…departure from the state of things rather than from a particular place”,

as was noted In the Marriage of Falk (1977).

Although separation under one roof is possible, parties wishing to count the relevant period towards the 12-month separation requirement must show that the marital relationship had irretrievably broken down, and that separation had occurred at a specific date.

It is probably a good idea to obtain evidence of separation if the parties continue to reside in the marital home, and some of the following can be used as evidence:

• moving into separate bedrooms, and informing other parties of the fact;
• informing friends of the separation;
• revising a will;
• informing other parties by letter (such as schools or financial institutions) that separation has occurred.

Matters relating to separation and divorce are notoriously difficult, and if you have a family law issue that needs to be dealt with, please seek the help of a lawyer who will be able to help.

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