To divorce your spouse you must show to the Family Court that your marriage has broken down irretrievably. This is proved by establishing that you and your spouse have been separated for a period of 12 months or more prior to filing the Application for Divorce.
Identifying the date of separation on your Application for Divorce form is not always easy because separation is not a short event but usually a process which can take place over a period of weeks or even months.
Section 48 of the Family Law Act states that a divorce order will be made only if “the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order”.
Separation under the same roof
To be separated does not mean that you and your spouse have to live in different homes. You may be separated but continue to live under the one roof for a number of reasons such as financial reasons or circumstances relating to the welfare of children.
In such circumstances the court may have difficulties establishing the separation date. That is why the court will need evidence to support your application. Such evidence by affidavit must be provided by you. In Western Australia an independent witness must also corroborate that you and your spouse have lived separated but under one roof.
Evidence about proper arrangements for the children of the marriage
If you have children with your spouse under the age of 18 you must satisfy the court that certain arrangements are in place for the children. The court will consider:
- the living arrangements for the children;
- the time the children spend with each parent;
- whether the children are being financially supported by you and your spouse;
- the health and education of the children.
Married for less than 2 years
If you have been married for less than 2 years the court cannot hear your Application for Divorce unless you and your spouse have been to a family counsellor to consider the prospects of reconciliation or the court dispenses with the requirement for counselling. Evidence that you have attended counselling must be given to the court.