WHILE Canberra couple Nick and Sarah Jensen have made international headlines over their plan to get divorced if they have to share the institution with same sex couples, legal opinion is sadly lining up against them.
Lawyers Farrar Gesini Dunn have been moved to blog their concerns around the plan.
Whilst we cringe to know that this is what puts “Canberra on the map”, we cannot help but comment in relation to the legal aspects of what Mr Jensen has said.
The only way to get a legal divorce in Australia is to apply to the Family Court (or Federal Circuit Court) pursuant to the Family Law Act (FLA). Section 48 of the FLA states that “An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably. Section 48 goes on to say that ‘a divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed’. Further, ‘the divorce order shall be made, if and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months”.
Noting the very public statements that Mr Jensen had made about their intention to continue to live together and refer to each other as ‘husband’ and ‘wife’; we think they may have difficulty applying to the Court for a divorce.
The lawyers in us cannot help to also point out that even if Mr and Mrs Jensen satisfy the court that they have met the conditions to apply for a divorce, living together as a couple immediately after they divorce does not instantly mean they are living together in a de facto relationship. Getting a divorce will also affect their wills.