My relationship is going through a rocky stage, but does this mean that my marriage has broken down and that I need a divorce? Is it not the case that marriage is for life? Where do I go from here and what action do I take?
These are all common questions and dilemmas facing a person experiencing a relationship breakdown and contemplating divorce.
Most relationships suffer at one time or another, but hard times do not necessarily equate to a marital breakdown. We can assist in helping parties reconcile. For example, we are able to provide contact details, and recommendations to professional people such as counsellors, or mediators to help get a couple back on track.
In many cases reconciliation is not an option.
Whilst it is correct that the Marriage Act 1961 defines marriage as being “ . . . for life”, the Family Law Act 1975 allows an application for a divorce order, if it can be demonstrated that the marriage has broken down irretrievably. In Australia, there is no need to demonstrate there has been fault by either party as is still the case in some other jurisdictions.
Irretreivable breakdown of marriage is demonstrated by the couple living separately and apart for 12 months prior to the application for divorce being filed. So, if you separated on 30th June, you could not apply for a divorce until the July 1, the following year.
There is of course a legal framework for divorce. Typically parties must be married for at least two years before they can apply for a divorce, although it’s still possible for parties to divorce within two years of marriage if they’re able to fulfil certain criteria.
Parties must be separated for a year before an application for divorce can be made. The notion of separation requires its own consideration. For example separation means more than physical separation.
It’s also possible for parties to be separated, even though they are still living under one roof. Simply moving into another bedroom is not sufficient. The couple must demonstrate they’ve been living separate lives for the 12 month period.
If you have any queries as to whether your separation under the one roof may be challenged by the other party, or are experiencing any of the issues above Hadley Family Law, can help.