Separation Under One Roof

Frustrated couple experiencing 'separation under one roof'

Thanks in large part to the COVID-19 pandemic, the Western Australian economy is expected to experience a recession in the 2021 financial year.

With increased unemployment rates, and house prices falling over the last 5 years,[1] there will likely be an increasing number of newly separated couples who will have little choice financially but to remain “separated under one roof”, at least for a time.

 

Why Does the Date of Separation Matter?

The date of separation between a couple can be relevant for several reasons. 

For de facto couples, it can be the difference between the Family Court of Western Australia having, or not having, jurisdiction to make orders for property adjustment and maintenance.  For the Court to have such jurisdiction, it is generally a requirement that the de facto relationship has existed for 2 years.[2] 

It is also relevant to the limitation period for de facto couples, who generally must commence proceedings in the Family Court within 2 years after their relationship ends.[3]

For married couples, a divorce can only be granted where the marriage has irretrievably broken down.  To show that the marriage has irretrievably broken down, the parties must have separated and lived separately and apart for a continuous period of at least 12 months, immediately before filing the application for divorce.[4]

 

Separation Under One Roof

Section 49 of the Family Law Act 1975 (Cth), which applies to married couples, provides as follows:

  • The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of the 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.

 

Are We Separated?

Whether there has been a separation under one roof will be a question of fact which is decided on the facts of each case.  As with many areas of law, it is not black and white, and the circumstances of each individual relationship will be considered.

For separation to occur between a married couple, one or both spouses must form an intention to sever and not resume the marital relationship, and act on that intention.[5]

The body of case law involving separation under one roof indicates that a comparison of the state of the relationship before and after the alleged separation may be required.[6]  The following factors may be relevant (to both married and de facto couples) in such an analysis:

  1. Whether one or both of the parties communicated to each other that they considered themselves to be separated.
  2. Whether the parties have continued to share a bedroom, and the extent to which any sexual relationship has been maintained.
  3. Any change in the financial relationship between the parties, for example the closure of joint bank accounts.
  4. How and when the separation was communicated to friends and family of the parties, and whether the parties have continued to hold themselves out to be a couple.
  5. A reduction in shared activities.
  6. The extent to which the parties have continued to perform domestic chores for the benefit of the other, such as cooking, cleaning, and laundry.
  7. The reason why the parties have remained residing under the same roof (e.g. financial pressures).
  8. Whether any government departments, such as Centrelink, have been informed about the separation.

 

What Next

If you consider yourself to be separated under one roof and require legal advice as to divorce, property settlement or parenting matters, please contact Bowen Buchbinder Vilensky for an initial consultation.

 

Disclaimer:  This article is intended to provide general information only and does not constitute legal advice. The article is in summary form and we recommend you seek legal advice or other professional advice as to whether and or how the information is applicable to your circumstances.

[1] https://reiwa.com.au/uploadedfiles/public/content/the_wa_market/house-prices-2013-web.pdf

[2] Family Court Act 1997 s 205Z(1)(a)

[3] Family Court Act 1997 s 205ZB(1)

[4] Family Law Act 1975 s 48(2). See also s 50(1).

[5] Pavey & Pavey (1976) FLC ¶90-051, citing Todd & Todd (1976) FLC ¶90-008.

[6] Todd & Todd (1976) FLC ¶90-008

PLEASE CONTACT

If you would like advice in this area please contact Kori O’Meehan at [email protected] 

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Which marriage counts when you want a divorce?

Marriage certificate & rings are placed on the table to assist with obtaining a divorce.

A void marriage is of no effect in law.  It is not a marriage at all, whether or not the decree declaring it void has been pronounced.[1]

It is not uncommon for a couple to have two marriage-like ceremonies, especially where one spouse has family interstate or overseas.

So, which one counts when you want a divorce?

Section 113 of the Marriage Act 1961 (Cth) (the Marriage Act) creates a general prohibition on persons who are already legally married to each other, marrying each other again.  There are some exceptions, for example where there is doubt about the validity of the first marriage. 

While section 113 creates a prohibition against marrying someone you are already married to, it does not expressly say anything about the validity (or otherwise) of a marriage conducted in contravention of the section, or what the consequences are for those who breach the section. 

Section 23B(1) of the Marriage Act provides a list of circumstances in which a marriage will be void, paraphrased below:

  • either of the parties is, at the time of the marriage, lawfully married to some other person;
  • the parties are within a prohibited relationship (familial relationships);
  • by reason of section 48 (formal requirements for marriages solemnised in Australia) the marriage is not a valid marriage;
  • the consent of either of the parties is not a real consent because:
  • it was obtained by duress or fraud;
  • that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
  • that party did not understand the nature and effect of the marriage ceremony; or
  • either of the parties is not of marriageable age;

and not otherwise.

The grounds listed in section 23B of the Marriage Act purport to be exhaustive, and they do not include a marriage to someone who is already your spouse.  

Fortunately, this does not mean that parties who have engaged in 2 marriage ceremonies need to be granted 2 divorce orders. As a general rule, if the first marriage is valid, then the second marriage is not.

In Kapadia and Kapadia,[2] Kay J relied on the power under section 113(1) of the Family Law Act 1975 (Cth) (Family Law Act) to declare a second marriage (to the same person) invalid.[3]  In the more recent decision of Nelson & Nelson,[4] Hannam J found that on the basis of “common sense and logic”, any such marriage between spouses must be void, notwithstanding the apparently exclusive nature of the words at the conclusion of section 23B(1) of the Marriage Act.[5]

Interestingly, there does appear to be a distinction (largely without a difference) between a void marriage and an invalid marriage.  A decree of nullity may be granted by the Family Court of Australia in the case of a void marriage only.[6]  The Family Court also has a separate power to make a declaration that a marriage is invalid.[7]

The cases cited above involved second marriage ceremonies conducted in Australia.  The validity of a second marriage may depend on whether one (or both) of the marriage ceremonies were conducted overseas.

Part VA of the Marriage Act operates to recognise, in Australia, marriages solemnised overseas (which are recognised as valid marriages under the local law).  There are some exceptions, such as when either party to the marriage was married to some other person at the time of marriage, or when either party was not of marriageable age in Australia.  Already being married to the person you are marrying, is not included as one of those exceptions.

In the case of Lieu & Antcliff,[8] the bride and groom were already lawfully married to each other (having been married in a registry office in Melbourne some years prior) when they renewed their vows and engaged in a marriage ceremony in Fiji (Fijian marriage).   

The couple separated shortly after the Fijian marriage.  They were granted a divorce order in respect of their first marriage in Melbourne without difficulty.  However, they were initially not granted a divorce order in respect of the Fijian marriage because of concerns as to its validity.

The Wife subsequently applied to the Family Court of Australia seeking orders for, in the alternative:

  • a decree of nullity in respect of the Fijian marriage;
  • a declaration of invalidity in respect of the Fijian marriage; or
  • if the Fijian marriage was valid, a divorce order in respect of the Fijian marriage.

The Wife filed evidence from a Fijian lawyer who deposed that it was not an offence under Fijian law to marry a spouse. The lawyer further deposed that the Fijian marriage was valid under Fijian law, notwithstanding that the parties were already married to each other.

It followed then, under Part VA of the Marriage Act, that the Fijian marriage was recognised in Australia, notwithstanding that it was a marriage between two people who were already spouses.

If you have been through two marriage ceremonies with your spouse, and want a divorce, then you should carefully consider the circumstances of each ceremony, and seek legal advice before applying for a divorce.

The contents of this article are for reference and discussion purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.  

[1] Zua v Huang [2015] FamCA 873 at [15].

[2] (1991) FLC 92-245.

[3] See also Anouihl & Temke [2017] FamCA 325.

[4] [2016] FamCA 516.

[5] See also Zau & Huang [2015] FamCA 873.

[6] Family Law Act 1975 (Cth), s 51.

[7] Family Law Act 1975 (Cth), s 113(1).

[8] [2016] FamCA 942.

PLEASE CONTACT

If you would like advice in this area please contact Kori O’Meehan at [email protected] 

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