Divorce and Irretrievable Breakdown of Marriage

Divorce and Irretrievable Breakdown of Marriage

Divorce is something that no couple would wish for, but in reality, it happens. It can be extremely distressing and the complex procedure required by the law can further enhance the emotional burden on both parties.

The Family Law Act (Cth) 1975 encourages both parties of the marriage to negotiate disputes that may have arisen in their relationship, before commencing court proceedings. Sometimes, these conferences can mend differences and help couples reconcile their relationship. However, in the event that it is unsuccessful, a party to a marriage may apply for divorce if they meet one requirement, that is, that there has been an irretrievable breakdown of marriage.

What is 'irretrievable breakdown'?

The sole ground for divorce is 'irretrievable breakdown' of the marriage. This means that both parties have lived separately and apart for a period of at least twelve months before making an application for divorce.

'Irretrievable breakdown' of marriage can be determined if:

• There is a conflict of personality;
• There is a mutual concern for both parties' emotional needs;
• The marriage is characterised by financial difficulties;
• There is a long physical separation;
• There is a difference of interests;
• There is resentment;
• Distrust;
• There is constant fight;
• Irreversible antagonist feelings towards one another.

Parties applying for divorce must bear in mind that there are factors that may indicate that the marriage has not irretrievably broken down. The existence of the following factors may result in the refusal of an application for divorce:

• Communication and sexual intercourse between the parties;
• Spending time together socially;
• Living together under one roof (should be proven to the court why such arrangement occurs);
• Economic or financial unity or co-operation exists; and
• Private acceptance of each other as spouses exists (people still identify them as a couple).

Separation under one roof

There may be cases when couples are separated but continue to live under one roof. In this case, the court will require an affidavit from the filing party, as well as evidence from a third party to prove that even though the parties are living under one roof, they are living their lives separately.

The experience of a marriage breakdown can be an exhausting and stressful time for both parties. Without knowledge or understanding of the law, the process can cause confusion and may cause delay to the process. Our Divorce Lawyers will help you understand the process and the scenarios that you need to go through. Contact Sydney Lawyers and Associates Pty Ltd today to arrange an obligation-free consultation.