Separation and divorce

Contributed by HenryMoser and current to 27 July 2018

Separation

Separation is when the parties no longer live together as partners. There is no such thing as a “legal separation”. Partners to a marriage or a de facto relationship are separated when they are leading separate lives and one partner has let the other know that she or he believes the marriage has completely broken down. This may mean that one person shifts out, or it may mean that both continue to share the house.

There are three essential elements to separate:

1. Making the decision to separate;
2. Acting of the decision;
3. Telling the other party of the decision.

Nothing needs to be done to make a separation official. A marriage continues until it has been “dissolved,” that is until the parties are divorced. A de facto relationship simply ends on separation.

A divorce cannot be sought until the couple have been separated for 12 months. The only ground for divorce is the “irretrievable breakdown of the marriage” which is proven by the parties having been separated for at least 12 months and there is no likelihood of the relationship recommencing. The Court will not be interested in who is at “fault”.

In cases where it is not obvious that the relationship has ended, it is necessary for the party who wants to separate to let the other one know of this intention. For instance, separation does not automatically begin due to imprisonment, illness or work transfer of one of the parties. In this case, either one party must inform the other that the marriage has formally ended before the period of separation begins, or evidence provided to show that one party has begun living with someone else or has ceased all contact with the other for the Court to presume that separation has commenced.

In other circumstances, the 12 month period begins when it is reasonable to believe that one party has left the relationship.

Separation under one roof

A couple can be separated and still live in the same house. The Court must still be satisfied that there has been an irretrievable breakdown of the marriage and that there is no reasonable likelihood of cohabitation resuming. It is normally necessary to show the Court:

• that there are good reasons for the parties having remained together in the same house (such as lack of finances to get separate accommodation);
• that the parties do not share marital activities (for example sexual intercourse and routine household or social activities, although isolated sexual intercourse may not prevent divorce); and
• that the parties will soon live apart.

Evidence from people other than the couple is normally required to prove that a period of 12 months has passed since the parties lived together as a married couple.

Resuming co-habitation

The parties may resume co-habitation for a period of up to 3 months without having to start the whole separation period again, but the period of resumed co-habitation will not count as part of the twelve months.

Rights during separation

Each of the parents is responsible for the welfare and maintenance of their children. Either may seek an order for the child to live with him or her, for sole responsibility for the child’s care and welfare etc, or for financial support of the child, see Children.

In some circumstances, a partner who is unable to support him or herself may apply for maintenance from the other partner. Either party is entitled to make an application for property settlement.

All these issues can be determined by the Court independently of whether the parties are separated or divorced.

Divorce

There is no legal requirement for a divorce unless one party wishes to remarry. It is the official ending of a marriage which can only be granted in the Family Court. Either person may apply for a divorce.

A divorce does not finalise matters concerning children or property, but the Court will require information about arrangements for the care and support of any children under 18 years. If dissatisfied, the Court may require further steps to be taken prior to considering an application for a divorce.

A divorce does set aside and existing will but does not change other legal arrangements or documents such as life insurance policies, joint loans etc.

The only ground for divorce is the “irretrievable breakdown of the marriage” which is proven by the parties having been separated for at least 12 months and where there is no likelihood of the relationship recommencing. The Court will not be interested in who is at “fault”.

In marriages of less than 2 years, a divorce will only be granted if there are special circumstances, or if the parties attend a special counselling session to determine if there is any chance of a reconciliation.

Either party can apply for a divorce but one must:

• be an Australian citizen; or
• be a permanent resident; or
• have been living in Australia for at least 12 months prior to the application.

Procedure for divorce applications

Applications are made to the Family Court of Western Australia online via the Commonwealth Courts Portal. Detailed instructions are provided on the Family Court of Western Australia website.

Applications may be made by one party (a single application) or by both parties (a joint application). The date of filing the application must be at least 12 months after the date of separation.

Applications are made with a Form 3. They must be accompanied by the original or a copy of the marriage certificate. If this is not available, either an undertaking to file a copy of the marriage certificate or an affidavit explaining why the certificate is not available must be filed.

Filing and service of documents

The application is filed when the Court receives it and gives it a number and a date of hearing is allocated.

Once filed, a copy of the application needs to be served on the other party (the respondent).

The Court will also provide the applicant with a document setting out the legal and possible social effects of a divorce and the counselling and welfare facilities at the Family Court and elsewhere. A copy of this document must be given to the respondent.

Detailed instructions how service is to be done can be found on the Family Court of Western Australia website.

Service takes place when the application is delivered to the respondent by hand or by mail. If it is given by hand, it must not be given by the applicant and must not be served on a Sunday, Good Friday or Christmas Day. If the respondent is not there, the documents can be served on any person apparently over the age of 18 years who undertakes to give it to the respondent.

Documents can also be sent by mail. If this is done, registered mail should be used so that evidence is available that the respondent received the documents.

The respondent should sign an Acknowledgment of Service.The person who served the documents should sign an Affidavit of Personal Service which should make clear:

• the name of the person served;
• how the person serving the application knew it was that person;
• the date of service;
• the exact details of the documents served (such as their titles and dates);
• whether the respondent signed the Acknowledgment of Service (if so, a copy should be attached to the affidavit);
• if the documents were not served personally, how they were given to the respondent; and
• any other information about what happened on service which may be useful in showing the person served understood what was happening and what it was about.

If a joint application for a divorce is made, there is no requirement for documents to be served on either party.

Overseas service

How documents should be served overseas depends on whether the country is a Convention country. A Convention country is one Australia has an agreement with about civil proceedings including service of documents. Contact the Family Court of Western Australia registry to find out whether or not the country is a Convention country.

Service in Convention countries is done by giving the documents to the Family Court of Western Australia who will forward them to the country concerned. The process takes about nine months.

If the country is not a Convention country, service may be either by post or given to the other person personally (if that is possible).

Service when the other party cannot be found

If the other party cannot be found to serve the documents on them, it is possible to apply to the Court to dispense with service.

Response

If the respondent wishes to defend the application, he or she must reply within 28 days (if served in Australia) or 42 days (if served overseas). The answer is set out on a Form 3A and includes the grounds for defending the application. An affidavit which sets out the details of the facts stated in the answer must also be filed and served with the answer. Contested or defended applications are very rare, as the only ground for dissolution is irretrievable breakdown of marriage evidenced by 12 months’ separation. All the Court has to do is to determine the period of separation. Disputes about arrangements for children and property are dealt with separately.

If the respondent does not want to defend the application, no answer is required.

Costs

There is a filing fee payable by the applicant. If the application is defended, there is a further hearing fee payable by the respondent. If the person holds a health care card from Centrelink, is in receipt of Austudy or Abstudy, or is a prisoner or lawfully detained in a public institution, he or she can apply to have the fees waived. Enquiries should be made to the Court registry.

Hearing in the absence of a party

If there are no children of the marriage, the applicant can ask the Court to hear the application in the absence of the other party by ticking a box on the application. If the Respondent objects, he or she must file a Form 3A and serve it on the applicant not less than 7 days before the hearing.

If there are children, it is important for the person who has the children in his or her daily care and control to be at the hearing in case the Court has any queries about arrangements for them. If this person is the respondent, the applicant should ensure he or she is there (if necessary, by serving a subpoena).

Hearing in the absence of both parties

If there are no children under 18 years, the Court can be asked to hear the application without either party being present. The applicant must indicate if he or she does not want to attend on the application itself.

If the respondent does not file an answer, the Court may deal with the application in both parties’ absence.

Court procedure

The hearings are in an open Court, but the Court has the power to exclude certain people from it. Usually only the parties, their representatives (if any), friends and relatives, marriage counsellors and welfare officers are present.

Many people represent themselves in simple divorce applications. However, if the matter is defended, or if it is an application where the parties have separated under one roof, consideration should be given to legal representation.

Decree Nisi and Decree Absolute

If the Court is satisfied that the 12 month period has passed and that proper arrangements have been made for the children, it will grant a decree nisi. This lasts for one month. The parties may not remarry during this time. The decree can be set aside (rescinded) if the parties reconcile during this time.

After one month, the Court will issue a decree absolute. There is no need to go to Court or to apply for this, it will be done automatically unless one party appeals against the determination. Appeals must be filed together with the fee before the decree absolute is granted.

In certain circumstances, the time between the decree nisi and the decree absolute can be shortened, but an application, setting out the reasons, must be made to the Court for this.

Nullity

An application for a decree of nullity is an application for the Court to declare the marriage invalid. Invalidity may arise where:

• one party was already married at the time of the ceremony (bigamy);
• the parties were in a prohibited relationship (sibling, parent, grandparent, step-brother or sister etc);
• there was no legal consent by either or both parties; or
• either or both parties were not of marriageable age.

Applications are set out on a Form 1 with an affidavit setting out the reasons why the applicant believes the marriage is invalid.

Parties to an invalid marriage are free to remarry at any time unless one or both are already married to other people.

Children born of an invalid marriage are treated in the same way as children born of a marriage.

If either or both parties honestly believed at the time of the ceremony that the marriage was lawful, they will be treated as a legitimate spouse for the purposes of property settlements and probate purposes.