In NSW, you generally need to be separated for a continuous period of 12 months before you can apply for a divorce, but the requirements around ‘separation’ are surprisingly flexible. The key issue is demonstrating to the court that the marriage has broken down irretrievably, and that there is no reasonable likelihood of getting back together.
What counts as separation?
Separation doesn’t necessarily mean living in different homes. Under section 49, the court can find you’ve separated even if you continue to live under the same roof, or one party provides household services to the other. What matters is that you and your spouse have decided to end the marriage, and are living separate lives.
Do we both need to agree we’re separated?
No, not necessarily. Section 49 clarifies that separation can be established even if only one party intends to end the marriage. However, proving separation can be more complex if your spouse doesn’t agree. You’ll need to demonstrate your intention to end the relationship through your actions and conduct.
What if we’ve separated and then reconciled?
If you reconcile and resume cohabitation, the 12-month separation period starts again from the date of the *new* separation. This means any time spent separated before the reconciliation doesn’t count towards the 12-month requirement. It’s important to be clear about your intentions if you do reconcile, to avoid uncertainty later on.
The reasonable likelihood of resuming cohabitation
Even after 12 months of separation, a divorce order won’t be granted if the court believes there’s a reasonable likelihood of you and your spouse getting back together. Section 48(3) outlines this. This is relatively rare, but it can occur, particularly if there’s ongoing counselling or attempts at reconciliation.
The valuation problem
Determining the exact date of separation is often crucial for property settlement purposes, as it establishes the asset pool. Disagreement about this date is common, and can significantly impact the outcome of property settlement negotiations. It’s not uncommon for parties to disagree about when they truly separated, particularly if there was a period of ambiguity or attempts at reconciliation.
Questions to consider
- What evidence do I have to demonstrate my intention to separate, even if we continued to live in the same home?
- If my spouse doesn’t agree we’re separated, what steps can I take to establish this with the court?
- How will the date of separation impact the property settlement, and what assets are relevant to that date?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.