Divorce and Separation – Navigating emotionally treacherous waters

Relationships are complicated and marriages even more so, but when they end, they have the potential to place your life in a stall.

Relationships mean different things to different people but it is important to understand the legal implications behind the classifications.

Divorce solicitors are your go-to professionals to ensure that an often heart-breaking and life changing process doesn’t get made worse by painful and tedious legal proceedings.

De-Facto Relationship?

A de-facto relationship under Australia Law is a relationship in which a couple of any make up (the notable exception being a couple that is related by family cannot be a de facto couple) lives together on a genuine domestic basis. This definition is uniform across all of Australia’s states and territories.

To make out a de-facto relationship, there are two chief indicia:

1. Be together for a period of two years without separation (However, if there are children or substantial contributions to joint property, exceptions are made to this rule); and
2. Be living together on a genuine domestic basis.
   1. This second indicia requires the considerations of multiple additional sub-factors including:
      1. Whether the relationship was sexual in nature;
      2. Financial dependency;

• Degree of mutual commitment to a shared life;

1. Whether the relationship was registered in a state or territories Registry of Birth, Death and Marriages;
2. Any ownership in property, whether joint or not and its use;
3. Children and their care and support; and

• Public aspects of the relationship, such as whether known individuals consider the parties to be in a genuine domestic relationship.

The laws surrounding de-facto relationships and their breakdown are dealt with under the Family Act 1975 (except in Western Australia which adopted the Family Law Act 1997 (WA)). The laws are designed to ensure that appropriate legislation protects those couples that are not yet married or do not intend to be married by ensuring that each matter is examined and assessed on in light of its specific circumstances.

Unlike marriage, de-facto relationships do not need to be mutually exclusive, meaning a person may be in two separate de-facto relationships. Again, unlike marriages, a de-facto separation does not need be registered and a de-facto couple does not get divorced.

What is Marriage in Australia?

Under the Marriage Act 1961, Australia defines marriage as the union of two people to the exclusion of all others, voluntarily entered into for life.

Divorce in Australia?

The definition of divorce is Australia is very plain – the termination of a marriage. What used to be called a divorce certificate is now referred to as a ‘divorce order.’

Australia’s divorce regime reflects the stance that the legal system should not further burden parties that are likely already experiencing emotional distress.

You may apply for a divorce order online as Australia employs a “no fault” regime, meaning that there does not need to be proof that one parties caused the breakdown of the marriage. More simply, there are two main indicia for a divorce order to be granted:

1. The parties must be separated for a period of 12 months (you may be separated but living together, however, you will still need to prove that the relationship is over); and
2. The parties must demonstrate that the marriage has broken down, not why it broke down.

If a couple has been married for a period less than two years, the courts will require they attend counselling first.

What is Annulment in Australia?

The term annulment is most commonly used in the USA and what most people believe annulment to be is not at all what it really is. Many people believe that divorce ends a marriage as if to close a chapter in a book, but an annulment somehow burns the book and gives you a brand new one.

Contrary to popular belief, an annulment is not a solution to hasty and impulsive elopers that wish to make it as if the marriage never happened.

In Australia, a decree of nullity declares a marriage null and void and is quite rare. There are few reasons that a marriage will be declared annulled:

1. One or both parties were already married;
2. The relationship is prohibited (e.g. the marrying of siblings);
3. The legal requirements were not met at the time of the marriage (e.g. the celebrant was unqualified);
4. One or both of the parties was under 17, and they did not have special court approval or there was no provision of informed consent by an appropriate third party; and
5. One or both of the parties was forced into the marriage.

The distinction between an annulment and a divorce brings out the legal contractual nature of marriages. A divorce represents the cessation of a contract whereas an annulment makes it that the marriage was never properly executed and therefore, any obligations under it are null and void.

There is no questioning, whether you’re in a de-facto relationship or marriage, the emotional distress of a relationship breakdown is compounded by the common disputes regarding the division of assets and parental arrangements for children.

Even in circumstances where divorcing or separating parties agree of all matters, it is essential that you engage a lawyer to review or draft the agreement as the courts will need to be satisfied that the agreement is ‘just and equitable.’ This is where the expertise of divorce lawyers is essential.

Relationships are one of the many joys in the world and the breakdown of a relationship, whether de-facto or a marriage is often met with great sadness and emotional turmoil. Even if it doesn’t relationships also form the basis of interpersonal contracts, whether discussed between partners or not.

The importance of not only capable and experienced solicitors, but passionate and empathetic professionals cannot be understated.

Finding the right guide to help you navigate such treacherous waters can be the key to you moving on from the breakdown of a relationship.