Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 21 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
To obtain a divorce in Australia there is no need to establish any fault on behalf of your partner. The court is not concerned with the reasons as to why the marriage is ending. Nor are they interested in the behaviour, good bad or otherwise of either party.
As long as the parties have been living separately and apart for a period of at least 12 months the only ground that you need to establish is that the marriage has broken down irretrievably with no reasonable likelihood of a reconciliation.
This was not always the case.
Prior to 1975 the law provided that the only way to get a divorce was to prove fault on behalf of your spouse.
The Act back then listed 14 grounds of inappropriate behaviour and the divorce application had to establish the existence of one of these grounds.
If you couldn’t do that you wouldn’t get the divorce.
They included adultery, cruelty, habitual drunkenness. imprisonment and insanity. Thankfully those days are gone.
A divorce can be organised jointly where both parties co-operate and sign the application, or it can be a sole application by one of the parties. In the latter the application must be served on the other party.
The requirement that you must be separated for at least 12 months does not necessarily mean that you must be living physically apart in separate residences.
Many couples cease to be living as husband and wife but continue to remain under the one roof.
This may be for financial reasons to avoid the additional costs such as rental and electricity involved in maintaining a second home. Alternatively, it can be because neither party wants to leave the matrimonial home and live apart from their children.
Separation under the one roof may occur for a few days weeks, months or years. If you or your spouse lived separately under the one roof during part or all of the required 12-month period, you will need to provide additional information to the court.
Basically, what you need to establish is that even though you were living in the same house, you were living separate lives.
Some of the indicators of this can be separate sleeping arrangements and a cessation of any intimate relationship.
Others can be a division of finances with separate bank accounts or a decline or cessation in normal family activities such as sharing meals together.