Strict definition of separation for divorce to take place

2-April-2014 Family Law By Simone Green

Did you know that provided a couple meets all the criteria, divorces are quite easy to obtain in Australia? Unlike the United States, you do not have to prove that one party was at fault. However, you do have to ensure that you and your partner have been separated for at least 12 months.

How is separation defined?

Three elements are required to demonstrate that separation has occurred and the marital relationship has broken down:

  1. The Intention of one or both of the parties to sever or not to resume the marital relationship;
  2. The parties act on that intention or act as though the relationship has come to an end; and
  3. Where one party alone considers that the relationship is at an end, that party must communicate that decision to the other party.

It is important to note that merely one party moving out of the matrimonial home does not establish separation. In the case of Campbell & Cade [2012] FMCAfam 508, the husband applied for divorce in December 2011 on the basis that the parties separated in July 2009 when he moved out of the house. The wife disputed this and believed that the marriage was continuing even though she and her husband were living in separate homes.

It was held that the husband failed to show that the parties lived separately and apart for a period of 12 months. The parties were acting as if they were a married couple by:

  1. Maintaining a regular sexual relationship;
  2. Attending social functions together;
  3. Staying in hotel rooms together; and
  4. Operating a joint bank account.

There are many occasions when couples still consider themselves married despite living apart for a period of time.

To enable that period of time when a couple is separated to be considered an overt separation, there must be some evidence of there being two households and communication that demonstrates an intention to separate. Without satisfying these criteria, a couple may find themselves facing a similar problem to Campbell & Cade.

To find out more, please Download our Free Divorce & Separation Advice ebook Parting Ways: Divorce and Separation: A Guide To Your Rights & Responsibilities.

To discuss your particular situation, please contact Streeterlaw’s Family Law Specialist on 81970105 or email

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