Insights and Inspiration
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29 March 2018
A recent case called Sarai & Talwar, features a couple of different points, but one relating to what it takes to end a marriage.
There is only one ground for divorce under Australian Family Law and that is irretrievable breakdown of marriage. This is established if the parties have separated and lived separately and apart for 12 months at least. Separation can include living under the one roof. But what is meant by "separation"? This is established by case law over the years. It involves one of the parties forming an intention to end the relationship, communicating that intention, and then the parties acting upon it. The "acting upon it" usually means somebody leaving the home, but not always. The three steps do not always happen in that sequence. If one of the parties to the marriage is travelling overseas, or in prison, or otherwise living completely separately, the other party could notify of the intention to end the relationship after the physical separation takes place, and then the separation would take place from the date of the communication.
The Sarai & Talwar case deals with, among other things, that communication. Mostly people communicate in words, saying things such as "I want a divorce". In our experience, there have been very few cases that do not involve verbal communication. One case was where the couple was arguing in the kitchen, the wife took off her wedding ring and engagement ring, put them in the insinkerator and turned it on, slammed the door and walked out of the house. No words were exchanged but it was not difficult to persuade a judge that this communicated an intention to end the marriage (and destroy the insinkerator).
The Sarai & Talwar case is, on the other hand, one where there were no verbal communications that clearly spoke about ending the marriage, but plenty of other indications.
Both the husband and the wife were Indian by birth. The husband became an Australian citizen. The couple married in India. Before the husband left India to return to Australia, she applied for an Australian spouse visa.
The first non-verbal communication was that when the husband got back to Australia he applied to the Department of Immigration to cancel his wife's spouse visa. Then she returned to Australia and located her husband. He stopped her getting into his home and told her to go away. While the "go away" might be verbal, it does not indicate necessarily the intention to end the marriage.
Next, because of the cancellation of her spouse visa the wife had to leave Australia and return to India.
On her return to India the wife began divorce proceedings and asked for some financial orders. After that, the husband started divorce proceedings in Australia and got an Australian divorce.
The wife appealed against the Divorce Order made in Australia, saying the husband's "communications" did not clearly signal his intention to separate. She also said that Australia was not the right country to hear the case, India was.
The husband thought this case was so weak he asked the court to dismiss it out of hand.
The court said that even though the point on communication of an intention to separate was very weak, it could not find that there were no reasonable prospects of success.
It certainly seems to us that stopping your wife getting into your home and having her thrown out of the country is a fairly clear indication that the marriage might be over. On the other hand, the question of the right court involves consideration of a complex issue of law but also could potentially create a problem arising out of Indian law.
It is commonplace to say that communication is the secret to a good marriage. Less commonly, we observe that good communication is also the best way to end a marriage.
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