Reconciliation and resumption of cohabitation can have a monumental effect on your divorce proceedings. A reconciliation will affect your date of separation, which in turn can affect property division and other aspects of your case. The impact of reconciliation combined with the attitude that the courts generally prefer parties to reconcile has resulted in some special rules with regard to reconciliation and resumption of cohabitation.
First, with regard to reconciliation, if the court determines that based on the evidence or attitude of the parties, a reasonable possibility of reconciliation exists, the court has the power to suspend the proceedings. This adjournment is designed to allow the parties the time and opportunity to consider reconciliation. However, if either party wishes to resume court proceedings, the court is compelled to grant this request.
Moving back in together, more specifically, resumption of cohabitation can also have a huge impact on your divorce proceedings. If your resume cohabiting, and then later agree to separate again, the period of time you had previously been separated may not apply when trying to meet the twelve-month separation requirement for divorce.
Now you may be wondering – what exactly equates to a resumption of cohabitation? The answer is that both parties must intend to resume cohabiting, act on that intention, and also be living on substantially the same terms as they were prior to the separation. An agreement to move back in together that never comes to fruition does not meet this standard. Also, simply moving in under the same roof but not resuming other aspects of the marital relationship will not equate to a resumption of cohabitation.
If you are considering moving back in with your ex, you should be aware of the special rules regarding the resumption of cohabitation. As we mentioned earlier, the court has a preference for parties to make amends, and they would prefer parties at least attempt reconciliation if there is a chance it might work rather than be too afraid to try because of the impact that reconciliation can have on the divorce proceedings. For this very reason, the court allows parties to move back in together for one period of time up to three months without there being any prejudice to their application for the divorce process in Australia.
Practically speaking, if you resume cohabiting and then separate again within three months, you may use the period of time you were previously separated in calculating the twelve-month requirement. On the other hand, if your resumption of cohabitation lasts for three months or longer, you will have to separate for a further twelve months before you can file for divorce.
