When couples decide to separate, the path to divorce can be complex, especially if they attempt to reconcile. One key aspect that can influence divorce proceedings is the resumption of cohabitation. Here’s a breakdown of how cohabitation affects the divorce process.
What is Resumption of Cohabitation?
Resumption of cohabitation occurs when separated spouses decide to live together again. According to Section 50(1) of the Family Law Act 1975 (Cth), if a couple resumes cohabitation for up to three months and then separates again, the periods of separation before and after this cohabitation can be combined. This means the time spent living together does not interrupt the separation period required for a divorce application.
Conditions for Resumption of Cohabitation
For cohabitation to be considered resumed, both parties must intend to live together as they did before separation and act on this intention. Simply living under the same roof without re-establishing a marital relationship does not count. Casual sexual encounters also do not constitute a resumption of cohabitation.
Impact on Divorce Proceedings
- Cohabitation for Less Than 3 Months: If the couple resumes cohabitation for less than three months and then separates again, they can count the separation periods before and after this cohabitation towards the 12-month separation requirement for divorce.
- Cohabitation for More Than 3 Months: If the couple lives together for more than three months, they must separate again for another 12 months before they can file for divorce.
- After Filing for Divorce: If cohabitation resumes after filing for divorce, the court may see this as a sign of potential reconciliation. However, it does not automatically invalidate the divorce application. The court will consider the likelihood of reconciliation at the hearing date, not the filing date.
Legal Precedents
Cases like Todd and Todd (No 2) and Saunders and Saunders highlight that an agreement to resume cohabitation must be acted upon to be valid. The intention and actions of both parties are crucial in determining whether cohabitation has genuinely resumed.
Encouraging Reconciliation
The law encourages couples to attempt reconciliation without jeopardising their right to divorce if the reconciliation fails within three months. This provision aims to give couples a chance to repair their relationship while still allowing them to proceed with divorce if necessary.
In summary, the resumption of cohabitation can significantly impact divorce proceedings. Couples should understand these legal nuances to navigate their separation and potential reconciliation effectively. If you are considering resuming cohabitation or are in the process of divorce, consider consulting with one of our Lawyers at My Legal Crunch, for professional guidance tailored to your specific situation.
