Our next myth comes from a reader of our blog who asks “My neighbour’s sister is terminally ill. Her husband left her last year. Is it correct that he won’t be able to divorce her because she is sick?”
Under Australian law, the health of one spouse does not affect the ability of the other to separate from the marriage, and later, apply for divorce. The fact of the matter is that there is only ONE ground for divorce in Australia which is that the marriage has broken down irretrievably.
This is proven by the parties separating, and then living separately and apart for 12 continuous months. Sometimes a wish to separate is mutual. Other times it’s one party’s wish alone. The act of ‘separation’ occurs by one spouse forming an intention to separate, communicating that separation to their spouse, and acting on that intention. Both parties need not ‘consent’ to that separation for it to occur.
Once that separation been maintained for the required period, either spouse can make an application to the Court for divorce (such an application can be made jointly where the separation has been mutual).
The application will need to be heard, and determined, while both spouses are alive. That divorce will be granted if the Court makes a finding of fact as to the date of separation for the required 12 months (and, if there are children, that proper arrangements have been made for their care, welfare and development).
So in this case, the spouse who is unwell will not be able to prevent her spouse filing an application for divorce, provided that he meets the statutory requirements as to separation. That spouse should, however, take advice as to whether proceedings for financial orders should be commenced (it is not necessary to wait until a divorce is granted to do so).