5 Essential Facts: When Can I Get Divorced in Australia?

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When Can I Get Divorced in Australia | Walker Pender

When can I get divorced in Australia?

To file for a divorce in Australia you need to have been separated for at least 12-months.

When Can I Get Divorced in Australia, and Can Parties Be Separated But Still Live Under the Same Roof?

When can I get divorced in Australia, and can parties be separated but still live under the same roof?

Understanding Separation Under One Roof

In legal terms, being ‘separated’ means that at least one person has decided to end the relationship and has communicated this to the other person. This can happen even if both partners continue to live in the same residence. If you’re living separate lives—eating, sleeping, and spending leisure time apart—it may be considered separation, even if you haven’t moved out.

If you decide to get a divorce in Australia, and you’ve been living separately but under the same roof, you’ll need to prove this to the court. This is because the legal requirement to satisfy the question “When can I get divorced in Australia?” is that you’ve been separated for at least 12 months. You may be asked to provide detailed affidavits from yourself and an independent third party, discussing the changes to your relationship and living arrangements.

Why Do I Need to Take Note of Our Separation Date? 

The date of separation is a critical factor in answering the query: When can I get divorced in Australia? Here are some of the reasons:

Eligibility for Divorce: In Australia you must be separated from your spouse for a specific period before applying for a divorce. This period is 12 months. Therefore, knowing the exact date of separation is vital to determine when you can get divorced in Australia.

Property Division and Financial Settlements: The date of separation can impact the division of assets and debts. While assets and debts are typically valued as at the date of settlement and not separation, knowing your date of separation can help you to make arguments as to why post-separation assets should be excluded from the property pool, and this will be particularly relevant in short relationships.

Reconciliation Periods: If you reconcile with your spouse during the separation period and then separate again, the date of separation may be reset depending on the length of the reconciliation. In Australia, if a couple reconciles for three months or more, the 12-month separation period starts again.

Parenting Issues: The date of separation can be necessary for some child custody situations. It can affect decisions about children’s living arrangements, especially when the separation is abrupt.

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What Happens When There’s a Disagreement About the Separation Date?

When can I get divorced in Australia, and what happens when there’s a disagreement About the separation date?

Having two different versions of the separation date can complicate matters, particularly when it comes to legal proceedings like divorce or property settlements. The dispute may arise due to differing perceptions of when the marriage effectively ended or if one party wants to expedite or delay the divorce process.

In such cases, the court will need to determine the official date of separation. This process may involve:

Evidence Presentation: Both parties will have the chance to present evidence supporting their claimed separation date. This might include written communication like emails or text messages, witness statements, changes in financial arrangements, or any other evidence showing a shift in the relationship dynamic.

Witness Statements: If any individuals can vouch for the changes in your relationship, their statements may be used as evidence. They could be friends, family, neighbours, or professionals like therapists or counsellors.

Legal Evaluation: The court will evaluate the evidence and decide based on the facts. The decision can substantially impact the divorce proceedings, division of assets, and even child custody.

Appeals: If one party disagrees with the court’s decision, they may have the right to appeal. However, the appeals process can be lengthy and costly.

Resolving Separation Date Disputes for Speedy Divorce Proceedings

Walker Pender Group was approached by a client struggling with a complex divorce due to a dispute regarding the separation date. Her ex-partner claimed their separation occurred in August 2022, whereas she insisted it began in May 2022.

Understanding that a minimum of 12 months of separation is required in Australia before filing for divorce, the Walker Pender Group promptly sought evidence demonstrating the actual separation date. We collected various types of evidence, including emails, text messages, and statements from family and friends, showing that the client and her ex-partner had been living separate lives since May 2022.

Upon presenting this evidence in court, the judge accepted May 2022 as the official separation date, allowing our client to file for divorce sooner than if the separation date was in August. This resolution expedited the divorce process and eased our client’s emotional burden during this challenging time. Walker Pender Group’s dedication to our client’s case led to a successful resolution, illustrating our commitment to aiding clients through complex legal issues.

Confused About When You Can Get Divorced In Australia? 

The legal team at Walker Pender Group is here to guide you. We understand the intricacies of separation and divorce laws. Need help navigating this challenging process? Contact Walker Pender Group today to help you move forward.

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