In Australia, a party to a marriage is able to make an Application for Divorce under Section 48 of the Family Law Act 1975 (Cth).
In order for an Application for Divorce to be granted, the Court must be satisfied of the following:
1. That there is a valid marriage;
2. That you:
a) Are an Australian Citizen; or
b) Live in Australia and regard Australia as your permanent home, or
c) Ordinarily live in Australia and have done so for at least 12 months before filing the Application for Divorce;
3. That the marriage has broken down irretrievably;
4. That the parties to the marriage separated and thereafter lived separately and apart for a period of not less than 12 months; and
5. That there is no reasonable likelihood of cohabitation being resumed.
On occasion, we have been required to consider what it means for parties to be “separated” and to have lived “separately and apart”.
In 1976, the Family Court of Australia considered this concept In the Marriage of Todd (No 2).
The facts relevant to the Application for Divorce were as follows:
- Mr. Todd married Mrs. Todd in 1960;
- Mr. Todd and Mrs. Todd has two children;
- In November 1974, Mrs. Todd relocated from the former matrimonial home with the two children of the marriage;
- In April 1975, Mrs. Todd and the children returned to the matrimonial home;
- In 1976, an Application for Divorce was made.
In his judgment, the Late Justice Watson determined the following:
1. ‘Separation’ means more than physical separation – it involves the destruction of the marital relationship. Separation can only occur where one or both parties to the marriage form the intention to sever or not resume the marital relationship and act on that intention. Considering what comprises the marital relationship will vary for each couple.
2. ‘Living separately and apart’ – Unless there is a substantial resumption of the marital state, this element is considered present. It is important to note, casual intimate relations with your estranged spouse do not constitute an interruption to separation.
3. ‘Resumption of cohabitation’ – Once the necessary period of separation has been established, a Divorce should be granted unless the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
In the Marriage of Todd (No 2), the Late Justice Watson found that the marriage had irretrievably broken down and that the parties had lived separately and apart since November 1974. Despite the parties resuming their cohabitation in 1975, Justice Watson determined the matrimonial relationship was never restored and accordingly, it was appropriate for the Court to make and Order for Divorce.
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