Proving irretrievable breakdown of the marriage for divorce matters

by The FindLaw Team

The one and only ground for divorce in Australia is that of irretrievable breakdown of the marriage. When proving irretrievable breakdown of a marriage, there are a number of elements that need to be demonstrated which this piece will cover.

What proof is required to demonstrate irretrievable breakdown?

The Family Law Act 1975 (Cth) (the Act) states that irretrievable breakdown of a marriage will have occurred if:

  • the parties have lived separately and apart for a continuous period of at least 12 months preceding the date of filing an application for a divorce order;
  • there is no reasonable likelihood of cohabitation being resumed.

The 12 month separation period begins from the moment that at least one party to the marriage considers the marriage to be over, and communicates to the other party that they consider the marriage to have come to an end.

Resumption of cohabitation

In the event that the parties resume their cohabitation as husband and wife, they can do so for one period up to three months without having the separation period resetting. If the parties choose to separate again, the separation period will resume as stated in s 50 of the Act.

It is important to note that instances of isolated sexual relations between the parties do not break the period of separation.

Separation under one roof

There is no requirement for parties when separated to live apart because they may still choose to reside under one roof for economic or other reasons. In demonstrating that separation has occurred under one roof, it must be shown that at least one party to the marriage has left the relationship, and that the parties live independently from one another.

The evidence required to demonstrate separation under one roof will be dealt with on a case by case basis. However, generally speaking, the parties should inform others about their decision to separate because the court requires evidence from friends, neighbours, and relatives that the parties no longer share the usual activities of the marriage. Some of the common markers of a marriage can include sleeping with one another, eating together, shopping, or undertaking household chores such as cleaning or cooking for one another.

Short marriages

For marriages lasting less than two years in duration, an application for divorce will only be granted if the parties have seen a counsellor about the possibility of reconciliation. Counselling may be dispensed with under certain circumstances, such as evidence of violence or abuse within the relationship for example.

For any person requiring assistance with any family law related manner, please contact a legal practitioner who will be able to assist with your matter. 



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