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Calculating the 12-Month Period for Divorce Proceedings in Australia

Updated: Feb 19

 

Calculating 12-month period for divorce proceedings
Calculating 12-month for divorce proceedings

Prior to initiating divorce proceedings in Australia, one of the legal requirements is that the couple must have lived separately for a continuous period of at least 12 months. This requirement acknowledges situations where the couple lives separately, even if they share the same residence. However, in some cases, ascertaining the 12-month separation period may not be as simple as it may initially seem.

 

Navigating the End of Separation: Understanding Sections 48, 49, and 50 of the Family Law Act 1975


The process of separation is a significant milestone in the journey toward divorce. However, understanding when this period of separation officially ends can be crucial for couples navigating the legal landscape. Sections 48, 49, and 50 of the Family Law Act 1975 provide essential guidance in determining the conclusion of this separation period.

 

Section 48: Commencement of Separation Period


Section 48 sets the stage for separation by stipulating that a period of separation begins when the couple ceases living together as spouses or partners. This section marks the official start of the separation period. This section requires the parties to a divorce application to establish that they have lived separately for a continuous period of no less than 12 months immediately preceding the date of the filing of the application for the divorce order.

 

Section 49: Separation Under One Roof and Helping Each Other During “Separation”


Section 49 of the Family Law Act 1975 defines the concept of “separation” within the context of marriage. This section clarifies that separation can occur even if it is initiated by only one party and even if the separation does not involve physical relocation to separate residences.

Key points from Section 49 include:


  1. Separation despite Actions of One Party: Section 49 states that a couple may still be considered separated even if the cessation of cohabitation was instigated solely by one party. In other words, if one spouse decides to end marital cohabitation, whether through action or behaviour, it can be recognised as a separation under the law for Divorce application purposes.

  2. Separation while Living under the Same Roof: Section 49 further elaborates that a couple can be considered separated and living separately and apart, even if they continue to reside in the same residence. This provision recognises that separation does not always entail physical relocation and acknowledges situations where couples may remain under one roof due to various reasons, such as financial constraints or co-parenting arrangements.

  3. Exclusion of Household Services: Additionally, Section 49 clarifies that the provision of household services by one party to the other, such as cooking or cleaning, does not necessarily negate the separation. This means that acts of assistance or support within the household do not automatically invalidate the separation if other indicators of separation are sufficiently present.

 

Basically, Section 49 of the Family Law Act 1975 broadens the understanding of separation within the legal framework of marriage. It recognises that separation can occur through the actions of one party and that physical separation may not always be a prerequisite for establishing separation under Australian family law.

 

Section 50: Temporary Resumption of Cohabitation During “Separation”


Section 50 is crucial for understanding when the period of separation comes to an end. It emphasises that for the purposes of divorce, reconciliation periods of up to three months within the separation period do not interrupt the continuity of separation. This section provides clarity on reconciliations and their impact on the overall duration of separation.


  1. Aggregation of Separation Periods: Section 50 states that if a couple resumes cohabitation after separating but separates again within three months of the initial resumption, the periods of living separately before and after the period of cohabitation can be combined. In other words, the time spent living apart before and after the brief cohabitation can be counted together as one continuous period of separation for the purpose of divorce proceedings.

  2. Exclusion of Cohabitation Period: Although the periods of living separately before and after the brief period of cohabitation are aggregated, the period of cohabitation itself is not considered part of the separation period. This means that the time spent living together during the period of cohabitation is not included in the calculation of the overall duration of separation.

  3. Continuation of Cohabitation: Section 50 further clarifies that interruptions in the cohabitation period, which the court deemed insubstantial, do not affect the continuity of the cohabitation period. This provision ensures that brief interruptions in the cohabitation, such as temporary separations or short-term absences, do not disrupt the treatment of the cohabitation period.

Overall, Section 50 provides a mechanism for aggregating periods of separation before and after a brief period of cohabitation for the purpose of divorce proceedings, while excluding the cohabitation period itself from the calculation of the separation period. This ensures fairness and consistency in determining the duration of separation under Australian family law.

 

Seeking Legal Guidance


Given the complexities of family law, seeking legal guidance is crucial for couples navigating separation and divorce. Experienced family law practitioners can provide tailored advice, assist in interpreting relevant legislation, and guide clients through the divorce process with clarity and confidence.

 

Conclusion


Understanding the provisions of Sections 48, 49, and 50 of the Family Law Act 1975 is essential for couples seeking divorce in Australia. By familiarising themselves with these sections and seeking legal guidance where necessary, couples can confidently determine the separation period, paving the way for a smoother transition to the next chapter in their lives.

 

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