QLD Legal Separation before Waiting 12 Months for Divorce?

[racheal]

Hi. I have been married for 2.5 years and the marriage is well and truly over. I cannot prove that we have been separated already for 3 months, so I am trying to move out to have a lease with just my name in it, as my husband is still on the current lease, though he no longer lives here.

I was wondering if there is any way I can get a legal separation certificate before the 12-month waiting period before I can get a divorce. We don't have children, we don't have property etc., I do have a vehicle which is registered in my name and is financed in my name, but he has taken this and there is nothing I can do as we are married, which is also quite frustrating!

 

[Sarah J]

Hi Racheal,

Separation and divorce are governed by the Family Law Act 1975 (Cth).

As I understand, you and your partner may apply for "end a registered relationship". You file an application that is signed, your documents are then copied, witnessed and certified by a justice of the peace, and you pay the filing fee. This is sent to Births, Deaths and Marriages either in person or by post. The termination will not be registered until 90 days after filing. This is a grace period in case any party wish to withdraw the application. This could be enough to show separation.
- QLD Government: End a registered relationship

Here is a fact sheet on marriage and divorce published by the Legal Services NSW: Family Law. It better explains the legal position on divorce and how to show separation and separate but living under the one roof situations.

Other ways of showing separation:

"
How do I get separated?
To get separated you do not have to apply to a court or government organisation, or fill in any forms. You will not get a certificate saying you are separated. You will need to:

• Tell organisations such as Centrelink, the Child Support Agency and Medicare that you are separated.
• Make proper arrangements for any children involved, and tell your family and friends.
• Sort out your financial affairs — work out how debts and loans will be paid, whether you have joint bank accounts, what your superannuation or insurance entitlements are and change your will. Tell your banks, superannuation and insurance companies of your separation too.

This will help if you need to prove you are separated. Also get legal help. See Dividing your property."
(Legal Aid Qld)

 

[racheal]

Thank you very much. This has been extremely helpful. Greatly appreciated

 

[Sophea]

Hi Racheal,

The only grounds on which you can obtain a divorce is "irretrievable breakdown of the marriage". A court will recognise an irretrievable breakdown, where the parties have lived apart and separately for at least 12 months and there is no likelihood of reconciliation. Therefore, there is no way of getting a divorce prior to the 12 month separation being completed and proven, and there is no way of circumventing this requirement.

The 12 month period is considered to start running the day after at least one of the parties considers the marriage over and tells the other party. However the parties may resume living together as husband and wife after commencement of the separation period for up to 3 months without having to restart the period running.

In addition, living under the same roof does not preclude the separation time from running. They can still live apart, but in the same house if it can be shown that they live independently of each other. This may be demonstrated by, telling friends and relatives of the separation, sleeping, cooking and shopping separately etc.