Applications for divorce are filed in the Federal Circuit Court (Family Court). The ground for a divorce is established if the parties have separated for a continuous period of not less than 12 months immediately preceding the date of the filing of the application. However, a divorce order cannot be made by the Court if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
For an application for a divorce, there must be a separation in the relationship.
Separation occurs when the relationship has been brought to an end by the action or conduct of one only of the parties or by both parties. The parties to a marriage may be held to have separated and to have lived separately and apart, notwithstanding that they have continued to reside in the same residence, or that either party has rendered some household services to the other party.
Although separation is not clearly defined in the legislation, the court normally takes into effect the following three elements of a separation:
- either or both parties form an intent to end the relationship;
- either or both parties communicate to each other that the relationship has come to an end; and
- the parties thereafter lead separate and independent lives.
They can do so even if they reside in the same household. Physical separation is neither necessary nor a sufficient condition for separation. An application for a divorce order is based solely on the ground that the relationship has broken down irretrievably. If the parties continue to reside in the same household this is not an impediment to filing for a divorce, provided the parties’ matrimonial relationship has been effectively severed and the parties have separated pursuant to the terms of the legislation. In such circumstances, evidence may be required from an independent person setting out their views on the relationship of the parties to corroborate any statements made in the application for divorce. If all the essential qualities of a common life have gone, the parties can be said to have separated.
The resumption of a relationship after a divorce application has been filed may affect the making of the divorce order as the Court may form the opinion that there is a reasonable likelihood of cohabitation being resumed. If the Court forms this opinion, then the Court will not order a divorce or make a divorce order.
The legislation permits separated couples to resume cohabitation for a period of up to, but not including, three months without affecting any prior period of separation for the purpose of the 12-month separation period required for a divorce. If such a resumption of a relationship occurs and the parties again separate, they can include the period of separation prior to that resumption of the relationship as being part of the 12-month separation period required.
If the parties have been married for a period of less than two years, they are required to consider a reconciliation, with the assistance of either a family or child counsellor before either party can file an application for their divorce. If there are children of the relationship who have not attained the age of 18 years, a divorce order cannot be made by the Court until the Court has been satisfied that proper arrangements have been made for the child’s welfare or that the divorce order should be made, notwithstanding that the Court is not satisfied that the proper welfare considerations have applied.