When Can I Apply for Divorce?

When Can I Apply for Divorce?

Following the breakdown of a marriage, one or both of the parties may wish to apply for a Divorce.

The Family Law Act sets out a number of requirements which must be met in order for the Court to grant a Divorce.

Parties must be separated for at least twelve (12) months. In In the Marriage of Todd (No 2)[1], separation was defined as “…more than physical separation – it involves the [breakdown] of the marital relationship…[and] can only occur…where one or both of the spouses form the intention to sever .. the marital relationship.”

In the event that parties continue to reside under the same roof following separation, the party alleging the separation has the burden of proving:

  1. Why the parties continued to live under the same roof; and
  2. The nature of the sudden or gradual change in the relationship.[2]

It is not uncommon for parties to have periods of reconciliation after separation. Section 50 of the Family Law Act provides that you and your partner may resume cohabitation for no more than three months following separation.[3]

For these reasons, it is important that the date of separation is accurately recorded with your solicitor and that the proposed date of separation is not disputed by one of the parties.

Of course all families and their arrangements are unique and if you have any concerns regarding your Divorce you should seek independent legal advice regarding the facts that are relevant to your matter. One of our Family Law Solicitors are able to assist you in this regard and can be contacted on 02 4929 2225.

[1] (1976) 1 Fam LR 11, 186.

[2] In the Marriage of Pavey (1976) 1 Fam LR 11, 385

[3] In the Marriage of Feltus (1977) 1 Fam LR 11, 665