Making the decision to separate is difficult in and of itself, making the decision to formalise the separation with a Divorce Order is even harder, but it’s often very important to end this chapter of your life before you can move onto the next. 

An application under the Family Law Actfor a divorce Order in relation to a marriage is based on the ground that the marriage has broken down irretrievably. 

In effect the only ground of divorce is twelve months’ continuous separation prior to the filing of the divorce application. If this ground is established, the Court must grant the application; there is no discretion to refuse a decree. The Court must not however grant a decree where it is satisfied that there is a reasonable likelihood of cohabitation being resumed.  

Questions often arise when parties who have considered themselves separated continue to live under the same roof. 

The meaning of separation is directly considered in the Family Law Act, and provides two principles in relation to the meaning of separation. Section 49(1)provides that the parties may be held to have separated, notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties. Section 49(2)provides that 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. 

The general purpose of these provisions in the Family Law Act is to make it clear that separation can be established, despite the continued existence of some association between the parties. 

In a nutshell, an application for divorce will generally be successful if the party/ parties satisfy the Court that:

1.     They have been married for longer than 2 years; 

2.     They have been separated for 12 months; and 

3.     The marriage is broken down irretrievably and there is no reasonable likelihood of cohabitation being resumed. 

Requirements for Divorce will differ where the marriage is less than two years long. Read about these requirements in our next blog titled The In’s and Out’s of a short marriage. 

Ally Hijazi

Senior Solicitor & Partner