Divorce: What does it mean to be “separated” from your spouse?

Headshot of Emily Cullen - Solicitor at Everingham Solomons TamworthIn 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.

At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.

 

The Merger of the Family Court of Australia and the Federal Circuit Court of Australia

Headshot of Emily Cullen - Solicitor at Everingham Solomons TamworthIn February 2021, the Senate passed the Federal Circuit and Family Court of Australia Act 2020 providing for the amalgamation of our two specialist Family Law Courts in Australia: The Federal Circuit Court of Australia and The Family Court of Australia.

The Act provides for the establishment of a new Court, the Federal Circuit and Family Court of Australia (FCFCA) comprising of two (2) divisions:

  • FCFC Division 1 will continue the work of the Family Court of Australia, dealing with the more complex matters and exercising appellate jurisdiction; and
  • FCFC Division 2 will continue the work of the Federal Circuit Court of Australia and will be the point of entry for all new family law and child support cases. The FCFC Division 2 will also have jurisdiction over general federal law matters.

In a statement to the media on 23 February 2021, the Honourable Justice William Alstergren, Chief Justice of the Family Court of Australia, said “to improve the system we need a streamlined single point of entry, as well as harmonized rules, forms and case management approaches.”

Under the new framework, the number of specialist Judges will increase. There are currently 33 judges in the Family Court of Australia and 40 judges in the Federal Circuit Court of Australia. The amalgamation will allow for 35 specialist judges in Division 1 and 43 judges in Division 2.

The promising news for those who have current cases before either the Federal Circuit Court of Australia or the Family Court of Australia is that the structural changes should not have an immediate impact on the way cases are conducted and accordingly, should not result in further delays or backlogs.

Despite the structural changes, the core principle of the Court will remain the prioritisation of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate management of risk factors.

At Everingham Solomons we have the expertise to assist you with all legal matters associated with Family Law because Helping You is Our Business.

See articles written by Emily Spence

What’s in a name?

Applying to change your child’s name after separation or divorce.

Under the Family Law Act 1975 (Cth), parents are required to make decisions jointly in regards to all matters concerning their child’s long-term care, welfare and development.

If both parents agree to change their child’s name, the process is simple. In New South Wales, applications to register a change of a child’s name are governed by Section 28 of the Births, Deaths and Marriages Registration Act 1995.

‘The parents of a child may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the child’s name if –

a) The child’s birth is registered in the State, or
b) The child was born outside Australia, the child’s birth is not registered in Australia and the child has been a resident in the State for at least 3 consecutive years immediately preceding the date of the application.’

The approved form is titled an ‘Application to Register a Change of Name for a Child (Under 18)’. Once completed, this form should be lodged with the Registry of Births, Deaths and Marriages for determination. It is noted, if the child in question is over the age of 12 years at the time the application is lodged, that child will be required to sign the application form.

An application for registration of a change of a child’s name may be made by one parent in the following circumstances:

a) ‘the applicant is the sole parent named in the registration of the child’s birth under this Act or any other law (including a corresponding law), or
b) there is no other surviving parent of the child, or
c) a court approves the proposed change of name.’

Expanding on part (c) as described in the above paragraph, prior to making an application to the Court, parents must attend a Family Dispute Resolution Conference in an attempt to resolve their differences. If it is not appropriate for the parents to attend such a Conference, the Family Dispute Resolution Practitioner will issue a certificate pursuant to Section 60i of the Family Law Act, enabling the parent or parents in receipt of the Section 60i Certificate, to make an application directly to the Court.

In the case of Chapman v Palmer (1978), the Full Court of the Family Court of Australia considered in what circumstances it would be appropriate to change a child’s surname. The Full Court determined the following factors should be considered:

1. The welfare of the child is the paramount consideration;
2. The short and long term effects of any change in the child’s surname;
3. Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with custody or care or control;
4. Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
5. The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
6. The effect of frequent or random changes of name.

At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.

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