As a family law firm on the Gold Coast & Brisbane we come in to contact with a lot of people going through divorce. From a legal perspective there are certain requirements that must be satisfied before a divorce can be finalised, and a family lawyer at Caldwell Solicitors can help you to make this a smooth process.
At a basic level under the Family Law Act 1975 (Cth) parties whom wish to be divorced need to be sure that their marriage has broken down irretrievably, they have been separated for 12 months prior to applying for the divorce, and that there is no reasonable likelihood of cohabitation being resumed. For marriages of periods of less than 2 years there is an added requirement of providing evidence of attendance at counselling in the form of a certificate (or with special leave of the court in special circumstances). If children are involved, there must also be proper arrangements in place for the care, welfare and development of the children. For some people there are no issues involved with this, such as when both parties have moved on and re-partnered. However, certain complexities can arise.
One complexity that can arise is when parties to a marriage remain living under the one roof following the breakdown of the relationship for the sake of their children. In this instance, questions can arise surrounding the mandatory 12-month separation period. Separation does not have to mean physical separation, however it may become an evidentiary issue as to whether the matrimonial relationship truly has broken down beyond retrieve. There is often a need to look at whether the husband and wife are still acting in their role as husband and wife or whether their roles now reflect that of mother and father of the children only. The specific circumstances of the case determine the application of the law in these situations, so it is difficult to give general commentary on this area.
Another complexity that may arise is where one party insists that separation has occurred but the other party disputes that was the point of separation. This dispute may prevent a party from applying for the divorce. In these situations the actions, intentions and communications of the parties become relevant and it may be necessary to compare the relationship pre and post alleged separation. This area of the law is again very specific to individual circumstances of parties, but it is generally thought that the 12 month separation period begins running from the time the parties form a common intention to end the marriage.
It is not always the case that parties whom separate completely end all contact with each other either. Sometimes parties resume cohabitation for a period of time, or may continue to casually interact either socially or sexually. As a generalisation under Family Law parties can resume cohabitation on one occasion for up to three months without it annulling a prior period of separation. However, as with all of these situations the specific actions, intentions and communications of each individual case are the turning point and will determine how the law applies.
Whether or not above issues arise in your divorce, the family lawyers at Caldwell Solicitors can guide you through this process smoothly and professionally.