Before you can apply for a divorce you have to be able to establish for the Family Court that your marriage has irretrievably broken down.
That ground is established if the Court is satisfied that:
(a) You have separated;
(b) Thereafter have lived separately and apart for a continuous period for not less than twelve (12) months prior to the filing of the Divorce application.
The twelve (12) month period commences from the date of communication of intention to separate.
You can live separately and apart but still live under the one roof.
If you and your spouse have lived in the same home during or part of all of the required twelve month separation period, you need to provide extra information to the Court by way of an Affidavit.
The Affidavit should contain as much information as possible that shows the ending of the marital relationship. This can include:
- Not sleeping in the same bed
- Separating your financial affairs
- Separating household tasks
- Reduction in or cessation of shared activities
- Not representing to the world at large that you are still in a relationship, that is, no longer socialising together
- Communicating to family and friends that you have separated
- Government Departments you have notified that you have separated if you receive Centrelink benefits or Child Support and attach any correspondence showing this
- Any other matter that shows the marriage has broken down
Your Affidavit should also explain why you have continued to live in the same home following separation and what living arrangements that have been made for children under 18yo.
If you are applying for a divorce on your own, you should also obtain an Affidavit of an independent person setting out what they know about the separation.
If you & your spouse are making a joint application you must each file a separate Affidavit.
You must also attend court for the Divorce hearing if there are children under 18yo. In all other cases you need not attend so long as the court has sufficient information about the circumstances of your separation in your Application and Affidavit. If the court needs further information the hearing will be adjourned and you will be directed to file a further affidavit or attend court in person.
Unless your matter is “standard” it is always a good idea to attend court for the hearing.
You should seek legal advice before applying for a divorce. Like many other things in life, it’s may not always be as easy or straight forward as first thought.