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11 December 2023

It Depends – If applying for a divorce, does disagreement about our separation date matter?

Authored by: Craig Turvey

In this edition of ‘It depends’, special counsel Craig Turvey discusses how a disagreement with your ex-spouse about the separation date may affect when you choose to file an application for divorce.

Video transcript

Hello. In this edition of It depends, I’d like to talk about the date of separation and how a disagreement with your ex-spouse might affect when you choose to file an application for divorce.

When can I apply for a divorce?

Parties can apply for a divorce once they’ve been separated for 12 months. Now, it doesn’t have to be a continuous period of 12 months. You’re allowed to effectively have one period of up to three months where you reconcile and you can aggregate the other separated periods. So, for example, if you’ve separated from your spouse for six months, you then reconcile for two months. You can then separate for a further six months and those two six month periods can be aggregated together. However, if, for example, you’ve separated for six months, you resumed the relationship for four months, then the clock would start ticking again and you would have to then have a full 12 month period where you’ve been separated before you could apply for a divorce order.

How do I apply for a divorce?

You can file an application for divorce either in your sole name or jointly with your spouse. It’s much easier generally if you file with your spouse, particularly if you have children who are under the age of 18. Because if you don’t, or if you file a solo application and you have children under the age of 18. For one, you will need to serve the application once it’s been filed on the other party, and they have to be personally served. That often means you’ll need to engage in a process server to do it. And if there’s a child under the age of 18, it also means that there will be a court date and you have to attend the court date. So, while in this climate it’s via Teams and it’s not in person, most people would really prefer to have to avoid that extra level of overlay by having to attend a court date. If you file a joint application with your spouse, even if there’s children under the age of 18, you don’t need to attend the court date virtually. A divorce order will be made in chambers by a registrar without either of you needing to appear or file any further documents. So, that’s a much easier option for people. Understandably, sometimes there’s a lot of dispute between parties and a lot of heat and people won’t agree to jointly file an application for divorce. So, you may not have a choice, but if you do, that’s usually by far the best option.

So, does it matter if we disagree on the date of separation?

It depends. If the dispute about the date of separation is maybe only a few days apart between you or a few weeks or maybe even a month or so, that’s not normally a big problem. And that’s because to get the divorce order, you need to have been separated for that 12 month period. So, by the time you file the application, there’s often a delay of a couple of months before there’s a court date before a registrar determines the application. So, if there’s a dispute and it’s a small variance between the dates of separation between you and your spouse, that’s not ordinarily a problem. However, if there’s a big dispute. So, for example, if you’re six months apart or a year apart or something like that, and you file your application for divorce on the date that you say you separated, then that’s the earlier date and the other person files a response to say, well no hang on, we actually separated in a year’s time after when you say it was, well, that’s an issue because then the court’s faced with this scenario where you’re both giving very competing views of what the date of separation is, and that means the only way they can determine that is either one, if one of you changes your mind and agrees with the other person or two, if they set it down for a hearing and you both formally have to give evidence about what you say the date of separation is. So, for most people, that’s not really what they want to have to go through. The divorce is usually quite a straightforward process and people obviously don’t want to be put to the expense of having to go to a hearing. So, when you’re deciding when you should file your application for divorce, you should be really thinking about what the date of separation the other person thinks is appropriate. And for example, if theirs is six months after yours, you might think, well, I don’t agree with their date and you can put your date in the application that you think is correct, but it might be better off holding off from filing the application until after their date of separation, well 12 months from that rather than filing yours at an earlier period, then being faced with the scenario where you might have to have a hearing about who was right or who was wrong, whereas it might have been just easy to delay filing the application in first place. So, it’s really just a timing issue from your perspective in terms of what you would prefer to do.

What if I have any questions about the divorce process?

If you have any questions about the divorce process or you’re considering divorcing from your former spouse, please don’t hesitate to contact me or one of the other family lawyers at Cooper Grace Ward.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Craig Turvey
Special Counsel

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