In NSW, a divorce is granted on the basis that the marriage has irretrievably broken down, meaning you don’t need to prove fault like adultery or cruelty. The primary requirement is that you and your spouse have lived separately and apart for a continuous period of at least 12 months.
What does ‘separated and apart’ mean?
Under section 48 of the Family Law Act, ‘separated and apart’ doesn’t necessarily mean living in different residences. You can be separated while living under the same roof if you are no longer living as a couple – for example, if you’ve stopped sharing a bedroom, finances, and social activities. However, establishing this can be more complex and may require supporting evidence.
What if my spouse doesn’t want a divorce?
Even if one party doesn’t want a divorce, the application can still proceed. The court focuses on whether the separation has occurred and lasted for the required 12 months. A divorce order will be made if the court is satisfied the separation has occurred and there is no reasonable likelihood of the couple resuming cohabitation.
Can a divorce be stopped?
Section 52 of the Family Law Act states that a court will not make a divorce order if an application for a decree of nullity (annulment) is also before the court, unless the nullity application is dismissed first. Beyond that, once the 12-month separation period is established, it is difficult to prevent a divorce from being granted, although the court can consider whether there is a reasonable likelihood of cohabitation being resumed.
The enforcement gap
While obtaining a divorce is relatively straightforward once the separation requirement is met, it only legally ends the marriage. It does *not* deal with property settlement or parenting arrangements. These are separate processes, and a divorce can be finalised even if these matters are still unresolved, which can create practical difficulties and potential future disputes.
Questions to consider
- What evidence do I have to demonstrate the date of separation and that we have been living separately and apart for 12 months?
- How will a divorce impact any existing Binding Financial Agreements or parenting orders?
- What steps should I take to protect my position while property settlement negotiations are ongoing?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.