By Karen Devey – Special Counsel
What does no-fault divorce mean?
Australia has “no-fault divorce”, which means that a person seeking a divorce does not need to explain why they want a divorce or, attribute blame for the breakdown of a marriage. A person applying for a divorce only needs to establish that the marriage has broken down irretrievably.
A divorce order will be made if the Federal Circuit and Family Court of Australia (Court) is satisfied that the parties lived separately and apart for a continuous period of at least 12 months immediately before an application for divorce is filed. The Court cannot make a divorce order if there is a reasonable likelihood that the parties will resume cohabitation.
A divorce order usually takes effect one month and one day after it was made. However, where there are children of the marriage who are not yet 18 years of age, any divorce order does not take effect unless the Court is satisfied that there are appropriate arrangements for the children.
The focus of this article is the meaning of parties living separately and apart.
What does living separately and apart mean when seeking a divorce order in Australia?
Living separately and apart means no longer cohabitating (living together) as a married couple.
Many separated couples live in different homes for the whole of the 12-month period immediately before an application for divorce is filed. However, some separated couples live under the one roof.
When separated couples live under the one roof for some or all of the 12-month period, a party applying for a divorce must also file an Affidavit setting out how the parties were not living like a married couple.
The circumstances for each separated couple differ, although some examples of how they were not living like a married couple include: sleeping in separate bedrooms, doing their own cooking and laundry, using separate bank accounts, communicating the separation to family and friends.
The affidavit should also include why the couple continued to live together, details about the arrangements for any children under the age of 18, and what government departments have been advised of the separation.
What happens if there is a resumption of cohabitation?
Section 50 of the Family Law Act 1975 (Cth) provides that separated couples can resume living together as a married couple for one period of up to 3 months without restarting the 12-month separation period.
During the resumed period of cohabitation, the 12-month separation period is paused. The total period of separation (excluding the resumed period of cohabitation) must be at least 12 months.
If a couple resumes cohabitation for more than 3 months, the continuous period of at least 12 months immediately before an application for divorce is filed restarts.
What about if the parties continue a sexual relationship after separation?
In the recent case of Bertrand & Bertrand [2025] FedCFamC2F 1121, Judge O’Shannessy of Division 2 of the Court was asked to determine when the parties separated, and whether there was a period of resumed cohabitation of more than 3 months.
Judge O’Shannessy determined that the parties had been separated for more than 12 months at the time the husband filed the divorce application, and he was not satisfied that they had resumed cohabitation in a marriage for more than 3 months. The findings were notwithstanding that the parties continued to have an occasional sexual relationship following separation, and the wife fell pregnant after the date of separation.
Judge O’Shannessy considered the following circumstances in his determination that the parties had separated in March 2023:
- The parties attended mediation in March 2023 regarding living arrangements for their child, X born in 2017. An agreement was reached and documented in an interim plan that was signed by Mr Bertrand. It is not clear if it was signed by Ms Bertrand.
- Ms Bertrand moved out of the family home on 8 April 2023. The parties then lived in separate residences until mid-2024.
- After 8 April 2023, the parties continued a consensual sexual relationship from time to time.
- in March or April 2023, Ms Bertrand’s special bed (needed for her medical condition) was removed from the family home to her new home.
- In mid-2024, Ms Bertrand had surgery. Mr Bertrand invited her back to the family home to assist her and enable X to spend time with his mother. The parties disagree about how long Ms Bertrand remained in the home.
- In late October 2024, Ms Bertrand moved her special bed back to the family home, without telling Mr Bertrand. Mr Bertrand called the police and attempted to have Ms Bertrand removed from the home. The police declined to intervene, and from this time Ms Bertrand and her bed remained in the home.
- Between 24 October 2024 and late November 2024, the parties frequently slept in the same bed and/or were sexually intimate.
- In late 2024, Ms Bertrand applied for an intervention order for her protection and the protection of X. Mr Bertrand was named as the respondent. Judge O’Shannessy described the application for an intervention order as “a significant (but not itself conclusive) indicator of the breakdown …”
- On 25 December 2024, the parties both attended the same Christmas function, although they did not attend together. They travelled to and from the function on their own. The function was hosted by parents of X’s school friends, and the parties were invited separately.
- Ms Bertrand considered the separation to be temporary. The parties had previously separated and reconciled, and the circumstances of their sexual relationship were confusing to Ms Bertrand. She has hoped Mr Bertrand would change.
- In early 2025, and after Mr Bertrand filed for divorce, Ms Bertrand learned that she was pregnant.
- Mr Bertrand considered the separation as final.
The case of Bertrand highlights that “no one aspect of separation or physical separation is a determining factor” and all the circumstances of a matter need to be considered in context.
It is also a timely reminder that only one party needs to desire the separation. Separation does not need to be desired by both parties. It is often helpful to communicate the desire to separate in writing, so there is a record of when separation occurred.
Thanks to Australia’s no-fault divorce, contested divorce is not common in Australia. Our experienced family lawyers can assist with applying for a divorce order, responding to a divorce and acting in contested divorce proceedings.
If you would like assistance with your divorce matter, please contact us on (03) 8672 522 to arrange an appointment with one of our experienced lawyers.
