Separation & Divorce: The Rules

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There is a general misconception surrounding separation and whether it can only occur if parties are living in completely different residences. This is in fact not the case, and separation does include separation under the same roof, as well as living in completely separate residences.

For the Court to be satisfied that the parties have been separated under the same roof, the party bringing the application needs to prove to the Court the following:

  • That they have been living in separate bedrooms;

  • The parties’ belongings have been separated;

  • Each party is attending to their own cooking, cleaning and washing;

  • That the parties have not invited family or friends to socialise in their home as a couple;

  • That the parties have not attended a social gathering/function together as a couple; and

  • That a third party such as a family member or friend was aware that the parties were separated but living under the same roof.

When making an Application for Divorce, the party applying needs to prove to the Court that the parties have been separated for a period of 12 months or more.

If the parties have been separated under the same roof for a part of that 12 months or for the full 12 months, when applying for Divorce, they will need to provide the Court with extra information in addition to the Application for Divorce, including:

  • The dates that the parties were living separately under the same roof;

  • An Affidavit by the person applying for the Divorce detailing the circumstances and how they were living separately under the same roof; and

  • A corroborating Affidavit of a third party such as a family member or friend acknowledging that they were aware that the parties were separated but living under the same roof and the details of how they were aware of those circumstances.

Once these documents have been filed with the Court, the parties will receive a ‘Divorce Hearing date’ where the Application is heard/reviewed before a Registrar of the Court. If all of the requirements for the Application for Divorce have been satisfied, the Registrar will make an Order for the parties to officially be divorced one month and one day after the Divorce Hearing date.

If you are separated and need assistance in preparing an Application for Divorce and/or Affidavits for separation under the same roof, contact the Family Law Team at Coutts who can provide you with all of the information required.

 

For further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112