LLAW3048 Family Law 2007
Take Home Exam
Question 1: Advise Pete as to the earliest date that he can file for divorce.
The S 48 of the Family Law Act outlines the sole ground for divorce as the irretrievable breakdown of marriage evidenced by separating and thereafter living separately and apart for 12 months, prior to the filing of the application. A court must refuse the divorce order if there is a reasonable likelihood of cohabitation resuming.
The three elements of separation must be established for any divorce to be effective. These are:
1. Action ie separating and then living separately and apart for 12 months.
2. Intention
3. Communication
Action/ Separation
The legal meaning of ‘separation’ does not concern physical separation. It relates to the effective breakdown of the matrimonial relationship and requires the action of only one party . In the Marriage of Pavey (1976) the Full Court stated ‘what compromises the marital relationship......
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