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10 things you need to know about divorce

May 14, 2020

Carr & Co

By Nicholas Coveney, Associate

Divorce can be one of the most difficult times in a person’s life. With the emotional turmoil and distress, it can be difficult to understand what is involved. Here are 10 things to consider when divorcing in Western Australia:

  1. Requirements

For two people to get divorced, their marriage must have ‘broken down irretrievably’. A marriage is deemed to have done so if those people have separated and thereafter live separately and apart (note point 2 below) for a continuous period of at least 12 months immediately before an application for divorce is filed. There must also be no reasonable likelihood of cohabitation being resumed.

  1. Separation under one roof

Two people may be separated and living separately and apart notwithstanding they have continued to reside in the same residence. If they have been living under the same roof during all or part of the requisite 12 month period of separation, they must provide evidence that they are living separately and apart, including from an independent person Examples which indicate separation include, but are not limited to, sleeping in separate bedrooms, not having a sexual relationship, conducting finances separately, notifying agencies they are separated and their friends and family knowing they are separated.

  1. Recohabitation

If two people resume cohabitation on one occasion, but within three months of resuming cohabitation, again separate and thereafter live separately and apart up to the date of filing the application, the period before and after may be aggregated as one continuous period. The resumption of cohabitation must have been by agreement.

  1. Marriages under two years

Except in special circumstances, the Family Court will not an accept an application for divorce if two people have been married for less than two years and they have not received a certificate from a family counsellor or a personal/organisation nominated by a family consultant or appropriately qualified officer, which states they considered reconciliation.

  1. Jurisdiction

The Family Court will only accept a divorce application if, at the date on which the application is filed, either person to the marriage is an Australia citizen, domiciled in Australia or is an ordinarily resident in Australia and has been so resident for one year immediately preceding that date. Ordinarily resident includes habitually resident. The Family Court may decline to exercise jurisdiction where divorce proceedings are pending in another country.

  1. Overseas marriages

The Family Court has jurisdiction to deal with overseas marriages if the jurisdictional requirements described above (see point 5) are met. However, if the marriage certificate is not in English, the person applying for a divorce must also file a translated English version together with an affidavit from the translator confirming their qualifications.

  1. Children

Except in special circumstances, the Family Court will not make a divorce order unless it is satisfied that the care, welfare and development of the children of the marriage under the age of 18 are being provided for. In other words, that the child’s living, educational, medical and financial arrangements are adequate.

  1. Will

Upon a divorce order being made, a persons Will is revoked unless there is a contrary intention in the Will or other evidence of such intention exists.

  1. Limitation period

Divorce and financial separation are not the same thing. Parties can separate their finances at any point in time post separation (whilst still being married) and conversely they can divorce without having separated their finances. There is however a time limit to initiate financial and/or maintenance proceedings in the Family Court, which begins once parties have divorced. That time limit is 12 months after a divorce order has taken effect.

  1. Remarriage

A married person who marries another person, commits the offence of bigamy. Bigamy carries a penalty of imprisonment for five years. Parties may only remarry upon a divorce order taking effect. A divorce order takes effect one month after it is made.

If you require advice from one of our team, concerning your divorce or any other matter arising from the breakdown of your relationship, call or email us now, 9322 8000 or contactus@carrco.com.au.