When separating, do not assume that staying in the same home or providing help to your former partner resets your separation date, and never take children outside Australia without legal clearance. The core complication is that separation is a legal status that can exist even while you are still physically residing under one roof.
Staying in the same home
Under section 49, parties may be held to have separated even if they continue to reside in the same residence or one party provides household services to the other. Practically, this means you do not always have to move out immediately to begin the legal process of separation.
Resuming the relationship
A divorce order will not be granted if the court is satisfied there is a reasonable likelihood of cohabitation being resumed under section 48. Attempting a reconciliation can restart the continuous 12-month separation period required before you can file for divorce.
Taking children overseas
Do not attempt to take or retain a child outside Australia without ensuring you are compliant with the law, as section 65ZD maintains the operation of State or Territory laws that prevent children from leaving the country. Failure to comply can lead to legal penalties and the issuance of recovery orders, which under section 67W typically remain in force for up to 12 months.
The proof of separation problem
When parties continue to live together while separated under section 49, establishing the exact date the relationship ended becomes difficult. This often creates significant uncertainty when trying to prove the continuous 12-month period required for a divorce application under section 48.
Questions to consider
- How can I clearly document the date of separation if we are still residing in the same house?
- Do my current travel plans with the children risk breaching laws regarding taking them outside Australia?
- Would my current interactions with my former partner be viewed by a court as a likelihood of resuming cohabitation?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.