What Constitutes Separation?
A Divorce application requires an ‘irretrievable breakdown’ of the marriage and that is held to be 12 months ‘separation’. So what makes separation?
The Family Court has determined that separation is when the following 3 elements are present;
- An intention to separate;
- Acting upon that determination; and
- Communication of that intention to the other spouse.
Whilst it may seem relatively straightforward, what constitutes separation can sometimes be a grey area. The issue of separation was recently considered in a case on appeal where the wife opposed the husband’s application for divorce on the grounds that they had not been separated for 12 months. She argued that the parties had maintained a married relationship even though they were not ‘living under the one roof’. She said they were only living separately because of the husband’s mental health issues, and that they otherwise continued to socialise together and engage in personal intimacy right up to just before the husband filed his divorce application.
The husband’s account of these reasons for separation were different, but to some extent he agreed that they had continued a relationship as the wife had contended, however he said that his contact with the wife was on the basis of ‘friendship/religion or obligation’ but that he had been clear to the wife that they were separated and that he had no intention of reigniting the marriage. The Judge in the first instance had taken the wife’s case at its highest and still found that the parties had been separated for at least 12 months. The appeal Court agreed with the single Judge’s decision and dismissed the wife’s appeal.
If you are not sure whether or not you have been separated for 12 months and would like to discuss this issue and the consequences which flow, please contact us on 3221 4300 for an initial appointment – we would be happy to help.
