In a recent appeal case in the United Kingdom, a woman tried to sue her Solicitor for professional negligence claiming she was not advised that by getting a Divorce her marriage would be terminated.
The woman, Ms Mulcahy, was a devoted practicing Catholic who said she wanted to avoid terminating her marriage.
She argued her Solicitor should have considered her faith and explained to her that by getting a Divorce her marriage would end. She said she should have been advised about getting a ‘Judicial Separation’instead of a Divorce, which would not have led to the end of her marriage (Please note that a ‘Judicial Separation’ is not available under Australian Law).
Justice Briggs from the UK Court of Appeal dismissed the case saying:-
“The most striking of Ms Mulcahy’s many allegations of negligence against her Solicitors was that, having regard to her Roman Catholic faith… [her Solicitor] … failed to give her the advice which was requisite in her view of her firmly held belief in the sanctity of marriage… either in terms of the alternative of judicial separation, or about the impossibility of pursuing divorce proceedings to a clean break settlement, without thereby inevitably bringing about the final termination of her marriage, which she wished to avoid”.
In Australia, the only ground for Divorce is an “irretrievable breakdown” of the marriage. This is established by proving that the parties to a marriage have been separated for not less than twelve (12) months.
In many cases the parties to a marriage may find themselves in a situation where the relationship is over, but for a number of reasons, they continue to still live under the same roof.
You can still be “separated” and continue to reside under the one roof. If this situation arises, then additional evidence will be needed to satisfy the Court that a separation has in fact occurred.
Separation and Divorce may also involve parenting and property issues.
When a Divorce is finalised, a limitation period for the making of property applications begins to run. The limitation period is twelve (12) months from the date of the Divorce Order and so the parties will have a period of twelve (12) months to either settle their property matters between them or file an Application in the Federal Circuit Court of Australia if a settlement cannot be reached.
Divorce also has an effect on a person’s last Will and Testament and so it is always advisable to have another look at your Will if you have separated from your spouse and get some legal advice about any changes needed to your Will.
For more information on family law matters, please contact our expert Family Law team at Brazel Moore Lawyers on (02) 4324 7699.
