Your Divorce and Separation Lawyers in Melbourne

If you wish to file a divorce within two years of being married, there are two avenues available under section 44(1B) of the Family Law Act.

The Court will not grant you a divorce order unless you have filed a certificate with your application for divorce to the effect that you and your spouse have considered reconciliation with the assistance of a specified person.

The filed certificate must be signed on behalf of the organisation or individual that has assisted you with reconciliation. An exception to the above certificate pathway is that you obtain the leave of the court under section 44(1C) of the Family Law Act if there are special circumstances.

Under section 48 of the Family Law Act, the court will make an order for a divorce if the marriage has broken down irretrievably and the parties have separated such that they have lived separately and apart for a period of 12 months before filing an application for divorce.

It should be noted that parties may nevertheless be deemed to have separated despite living in the same residence or a party has rendered some household service to the other. In this scenario, to determine whether the parties have separated, the Court will usually examine the marital relationship before and after separation. If the parties’ martial relationship before and after separation remains substantially the same, for instance the wife continues to cook for the husband, the husband continues to clean the house and or the parties have maintained a sexual relationship, it is unlikely that the court will be satisfied that separation has in fact occurred.

Further, it is strongly emphasised that even if the parties have been separated for twelve months and have satisfied the above mentioned requirements, should the court believe that there is a reasonable likelihood of the parties resuming cohabitation, the court will not grant a divorce.