Divorce & Separation

Australia has no-fault divorce legislation, so either party can make the application for divorce, with no requirement to show the Court that either party has breached the marriage contract. To divorce in Australia, your marriage must have irretrievably broken down.

To prove that your marriage has irretrievably broken down, you must show the Court that you have been separated from your spouse for at least 12 months, prior to making your application for divorce.

To apply for divorce in Western Australia, either spouse making the application must:

• be an Australian citizen at the time of making the application,
• ordinarily domiciled in Australia,
• be a resident of Australia, for at least 1 year before the date of making the application.

No. There is no need to be divorced, or to make an application for divorce, if you want to separate your property or make parenting orders for children.

You can continue to live in the same house during the 12 month separation period, but it may be harder to prove to the Court that you are no longer living as a domestic couple. Evidence that you are no longer sharing a bedroom, or that have separated your finances for example, could be useful to substantiate your separation

Australia has no-fault divorce legislation, so either party can make the application for divorce, with no requirement to show the Court that either party has breached the marriage contract. To divorce in Australia, your marriage must have irretrievably broken down.

Australian law treats couples that are living in a de facto relationship in a similar way to married couples. The time limit for de facto partners seeking orders for custody, maintenance and property orders is within 2 years of separating, or else the applicant must seek leave from the Court for more time.

A de facto relationship is where 2 people (of the same or different sex) who are not legally married and are not related by family, are living together in a genuine domestic basis. They can seek relief in the Family Court. At the present time, West Australian de facto partners are not able to split superannuation interests, unlike married couples.

The Family Court recognises de facto relationships, even if one of the people in the relationship is legally married to someone else.

While the presence of one of these indicators is not enough to determine if somebody is in a de facto relationship, the Court will look at each factor listed in s 13A of the Interpretation Act (1984) WA when deciding whether the parties have been in a de facto relationship:

(a) the length of the relationship between them;
(b) whether the 2 persons have resided together;
(c) the nature and extent of common residence;
(d) whether there is, or has been, a sexual relationship between them;
(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f) the ownership, use and acquisition of their property (including property they own individually);
(g) the degree of mutual commitment by them to a shared life;
(h) whether they care for and support children;
(i) the reputation, and public aspects, of the relationship between them.

• If you have been in a de facto relationship for at least 2 years, or
• One party made a substantial contribution, or
• You have children together under the age of 18 years, and not getting a property settlement would result in serious injustice.

These factors are likely to make you eligible for an application to alter property interests at the Family Court, but proper, specific legal advice is required in order to determine the likely asset split.

The rules as to division of property, parenting & divorce (if the parties were married) are the same for different sex relationships whether married or de facto.

Speak to Mossensons today to find out if you are eligible for a divorce.