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TAS Divorce - Implications of Having Different Separation Dates?

Discussion in 'Family Law Forum' started by WHMurphy, 21 September 2016.

  1. WHMurphy

    WHMurphy Well-Known Member

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    Hi everyone,

    This is the situation. My wife and I have been effectively separated, but we've living under one roof since the middle of June, 2009 (I know, inexplicable), after telling me that the only reason she was with me was for the kids. In my affidavit, I listed the indicators:

    * We have slept in separate bedrooms since that time.
    * We have not engaged in any sexual relations.
    * Both my wife and I have a separate social network that never meet. We do not attend social gatherings together or participate in family activities together.
    * I have done all my own grocery shopping and cooked every night for our children and others staying in the house. I have done all the laundry for myself and my children during this time.
    * My wife would spend her evening on the ground floor of the house and I on the upper floor.
    * She had been seeing other men during that time.
    * Our close friends and family have been aware of this situation for many years.
    * We did, however, continue to share a joint bank account, from which household expenses were paid.

    It may sound like a typical married relationship to many of you.

    I provided an affidavit by a mutual long-term friend which supports my claims. My wife had previously stated that he is one of the few people she has ever trusted in her life.

    On the 26th of March, 2015, she again told me she wanted a divorce. Previously, I had told her to go ahead, but she never took any action. I would have been delighted, but knew she would not make it easy. This time, I got the papers and presented them to her within the week. She said she would sign a joint application. As she found every excuse under the sun to sign it, I eventually filed an individual application for divorce. The hearing is in two days.

    Last night, I heard her rustling at my door (could be the start of a horror movie). This morning I find a sealed envelope with a response the claims in my divorce application. In it she claims the date of separation was 1 March 2014.

    My Questions:

    1) I understand that for the purposes of a divorce, where the couple have been separated but living under one roof, it only needs to be established that the two parties have been separated for more than 12 months. In that case, it is irrelevant that we both claim different dates as to when we separated. As we both claim to have been separated for more than 12 months, there should be no problem with the divorce being granted. Is this the case?

    2) Did she follow the correct procedure in serving her response to me? The document was left at my door. I had to go to the trouble of paying someone to serve the divorce papers on her, because she refused to co-operate and accept them through any other means.

    3) Is there a time limit on responding to the claims in a divorce application? My hearing is in two days time. I received her response this morning. The document was signed by her lawyer on the 16th of this month, 5 days ago.

    She wrote 'For _____ ______ posted 20/09/2016' on one of the documents. It was not posted.

    4) If the papers were served incorrectly, are there any implications?

    Thanks
     
  2. sammy01

    sammy01 Well-Known Member

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    Ok, so you have 12 months from time of divorce to seek court action to organise asset division. Are there kids?

    Look, nope, it ain't exactly done by the rules. She is meant to get you to sign that you received them (I think - been a few years), but pick your battles. You want divorce? Then who cares about dates? Like I said, the big one is the 12 months from time of divorce to get asset division done.
     
  3. WHMurphy

    WHMurphy Well-Known Member

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    Hi sammy01,

    Yes, I'm currently getting all my documents together for a court order to divide our assets, as she has refused to go to mediation.

    Thanks.
     
  4. AllForHer

    AllForHer Well-Known Member

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    If this is just about the divorce application, the conditions that enable a divorce decree have been met according to either side of the matter, since the 12-month period of separation has been agreed. As such, I don't think the Registrar will need to make any finding of fact in respect of when separation actually occurred.

    Yes, she didn't follow the rules for filing a response, but it's likely the Registrar will let you decide the impact of that oversight - it will ask if you want to adjourn the matter so you can have reasonable time to consider the documents filed by your ex. In my view, since that 12-month separation condition is already met, there's not much point in adjourning anyway.

    If it proceeds to a parenting and/or property matter, the Court may have more questions about the actual date of separation, but not much will turn on it as a finding of fact, since in property settlement, the asset pool is taken at the day of settlement rather than separation and in parenting matters, it's linked more or less to care arrangements implemented after separation.
     
  5. WHMurphy

    WHMurphy Well-Known Member

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    Thank you very much AllForHer,

    It's as I suspected. The criteria of 12 months separation has been acknowledged by both parties, so the divorce should go ahead.

    I won't be asking for an adjournment, as I want the divorce to proceed as quickly as possible.

    The next fun step is the court order for a property settlement.

    Thanks again.
     
  6. AllForHer

    AllForHer Well-Known Member

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    Shame she's refused mediation. The Court will probably make an order that you attempt mediation anyway.

    Just remember that once the divorce is finalised, you've got 12 months to file for property settlement through Court.
     

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