Separation divorce or nullity?

The ending of a marriage is not an easy time for anyone. Legally, there are several ways to define the end of your relationship, so let’s look at those.

Separation – including separation under one roof

There is often a misconception that separation can only occur on the date that one person decides to move out of the home, but in many instances, this is not the case.

On the back of the COVID-19 pandemic and the rising cost of living, many couples choose to separate but remain living in the same house. This could be due to finances, joint home ownership, or caring for children.

The partner wanting to prove that separation has occurred while still living together will need to provide some evidence, such as:

  •  There has been a change in sleeping arrangements.
  •  A decline in performing household duties for each other.
  •  Separate finances, such as separate bank accounts.
  •  Reduced family and social outings together· Any family members and friends that can confirm they are aware separation has occurred (i.e., that the two spouses are living separate lives).

Living separate lives while still sharing a home is not an easy path to take, particularly if the split is acrimonious. It’s an arrangement that will take work and cannot continue indefinitely.

Divorce

Divorce is the legal severance of a marriage. It involves a specific application and when granted by the court, a certificate is issued to confirm that you are no longer legally married.

You can only apply for a divorce once you have been separated for a period of 12 months. Australia has a “no-fault” divorce system, which means the reasons for the marriage breakdown are irrelevant to whether a divorce will be granted.

A divorce does not deal with any other issues between a couple, such as parenting arrangements or property division. These issues are separate from a divorce and should be addressed following separation, whether or not a divorce has been granted.

No waiting time is required following separation before issues such as parenting and property can be resolved – the 12 months wait time applies only to the divorce application.

Once you are divorced, a time limit commences for you to bring an Application for orders for division of your matrimonial property and/or spouse maintenance. You have only 12 months from the date that your divorce order becomes final to apply for a property

settlement or maintenance without seeking leave of the Court. It’s best to try and resolve these issues as soon as possible.

Annulment

An annulment, or nullity of a marriage, is an Order of the Court that a marriage never existed.

Despite what TV shows and movies might tell you, orders for a nullity of marriage are rare in Australia. Besides fundamental issues, such as duress or fraud, it usually requires that the marriage ceremony has been conducted incorrectly or that the person conducting it is unqualified.

The Family Court of Australia may declare a marriage invalid on the following grounds:

1. One or both of the parties were already married at the time

2. One or both of the parties were underage at the time of the wedding and did not have the necessary approval,

3. One or both parties were forced into the marriage under severe duress.

The Court will NOT declare the nullity of the marriage for reasons including (but not limited to):

1. Non-consummation of the marriage;

2. Never having lived together;

3. Family violence; or

4. Other incompatibility situations.

If you have questions about separation, divorce, annulment, or any other aspect of family law relating to a relationship breakdown, contact Bickell & Mackenzie. Our specialist family law experts are here to help you. Call our office on (07) 3206 8700.

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