Divorce
To get a divorce, you need to show that the marriage has broken down irretrievably and that there is no chance of you getting back together.
For a divorce to be granted, you need to show that you and your husband or wife have lived separately and apart for at least 12 months before you file for a divorce.
Living separately and apart for 12 months doesn’t always mean that you both have to live at separate addresses. There are situations where a husband and wife may be legally separated even though they are still living in the same home under the one roof.
The marriage may have broken down irretrievably but the parties may decide to stay in the same house but lead separate lives. This may be because both parties want to continue to live with their children or for reasons of financial constraints.
Whatever the reason, they need to be able to show that for a 12 month period they lived completely separate lives.
Behaviour such as buying separate groceries, each party attending to their individual financial matters and an absence of cohabitation, can go towards establishing a “separation under the one roof”.
If you separate within a 2 year period from the date of your marriage, the law requires you to see a family law counsellor before you can be divorced. This is to make sure that there is no chance of reconciliation between the parties.
After you have been divorced you should be aware that there is a time limit on applying to the court for a property division. Proceedings for the division of your matrimonial property must be commenced in the court within 12 months from the date of the divorce order being made.
If you do not commence court proceedings within the 12 months, you will need either the consent of your spouse or permission from the court to do so.
A good starting point is to prepare a list of the current value of your matrimonial assets, liabilities and financial resources (such as superannuation) and take this with you to your solicitor.
This will help to put a value on the property to be divided. You should also try to get details of any property that has been purchased or sold by either you or your spouse since separation.
A common misconception is that the court only looks at the state of your financial affairs when your marriage ended. This is not the case. The court, when working out how to divide your matrimonial property, will have regard to the current value of the assets, not the value at the date of separation.
Paula Phelan is an Accredited Specialist in Family Law at local firm Rees R & Sydney Jones.
