Divorce

Sometimes whether or not the parties have separated is in dispute and more commonly, the date of separation can be an issue in dispute between the parties. It is a good idea to communicate a separation in writing, even if it’s just an email or text message, so that the date of separation can be readily proven. Often cases for property settlement in de facto relationships can turn upon whether a party can establish that separation occurred on a particular date. If a de facto relationship was less than two years long, the Court may have no jurisdiction under the Family Law Act to even hear and determine a property settlement, so establishing the date of separation can be very important. In the case of a divorce, if you cannot prove you separated from your spouse at least twelve months prior to filing an Application for Divorce, the Court will not grant a divorce for you.

If there is a dispute about when and if a separation has occurred, the Court may be required to determine this issue. The factors that the court will consider in determining when and if a separation has occurred include:-

• Whether or not the parties separated their financial affairs following separation.
• Whether the parties performed domestic duties for each other after the date of separation.
• Whether the parties slept in separate rooms or were intimate after the date of separation.
• Whether a party lodged documents with Government departments evidencing a separation, ie: Centrelink or the Australian Taxation Office.
• Whether or not it was publicly known that the parties had separated, ie: whether their friends and family understood that a separation had taken place.

If establishing separation is potentially going to be an issue, an affidavit putting relevant matters before the court will be necessary and in some instances, having a solicitor prepare this document for you might be the most effective way to achieve your objective of obtaining a Divorce order.