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Common Misconceptions about Divorce

Family Law: 27 February 2024

Author: Phoebe Smillie - Our People

With Married at First Sight back and in full swing, we find lots of people questioning whether the couples are really married.

We answer this question in our previous article, ‘Can you really be “Married at First Sight” in Australia’ which you can read: Can you really be 'Married at First Sight' in Australia?

Not only does Married at First Sight raise questions about marriage, but it also raises questions about Divorce. The couples in Married at First Sight do not need to apply for a Divorce given they are not technically married. We outline five of the most common misconceptions people have in relation to Divorce in Australia below:

1. Separation is the same as divorce

Separation and divorce are different and should not be conflated. Separation occurs when a spouse considers the marriage to be over and has communicated this to their partner. A married couple must be separated for a period of 12 months before they can apply to the Court for a divorce.

2. Both parties have to agree to divorce

A couple can make a joint application to the Court for a divorce. However, if a couple has been separated for 12 months, then a spouse may file an Application for Divorce without consulting the other party. Once the Application has been filed, the party who makes the application must serve a copy on the other party.

3. Someone needs to be at fault

Family law in Australia is a no-fault jurisdiction. This means to divorce your spouse, there does not need to be a fault for the breakdown in the marriage. When the Court deals with an Application for Divorce it does not ask why the marriage has broken down, it simply asks whether the marriage has broken down irretrievably.

4. I cannot apply for a divorce until I finalise my property settlement

You can apply for a property settlement prior to a divorce or within 12 months of the granting of a divorce order.

5. You need to be living in a separate house to your spouse prior to divorce

It is possible to obtain a Divorce Order if you live in the same house after separation but lead separate lives. In deciding whether you separated under the one roof the court will consider a number of factors, including but not limited to, whether:

  1. You sleep together;
  2. You have sex or engage in sexual activity;
  3. You share meals and domestic duties;
  4. You share money and bank accounts; and/or
  5. Your friends and family think of you as separated.

If the above applies, you will need to prepare a separate affidavit supporting the above facts.

Divorce can be a complex area to navigate. Our family lawyers are highly experienced in all aspects of family law and would be happy to assist you with your divorce queries. Phoebe Smillie is a Senior Associate in our family law team, please do not hesitate to contact us on 03 8600 6000.

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