Divorce

Written By Samita Dhanapala

Ground for divorce

As per Section 48(1) of the Family Law Act 1975 (Cth) (The Act), there is one ground for divorce in Australia, which is that the marriage has broken down irretrievably. This means that there is no reasonable likelihood of cohabitation being resumed by the parties to the marriage. 

The irretrievable breakdown of the marriage is evidenced by 12 months of separation. Separation means more than physical separation – it involves the destruction of the marital relationship (Todd and Todd (No 2) (1976) FLC 90-008). Accordingly, physical separation is not a condition required to evidence the breakdown of the marital relationship. Instead, as per case law, the following three elements must be established to prove separation: 

  • Intention of one or both of the parties to sever or not to resume the marital relationship;

  • The parties act on that intention or act as though the relationship has come to an end; and

  • Where one party alone considers that the relationship is over, they must communicate that attitude to the other party.

As per the above, you should only file for divorce if you genuinely wish to sever the marital relationship.  

12-month separation

For the purpose of calculating the 12-month period of separation, the day on which separation occurred is ignored (Bozinovic and Bozinovic (1990) FLC 92-121). Therefore, you can file an application for divorce 12 months and one day from the date of separation. However, if you file an application for divorce, and the Court considers that there is a reasonable possibility of a reconciliation, then proceedings will be adjourned, and a divorce order will not be made as per Section 48(3) of the Act. Where a divorce order is made, you can apply to the Court to rescind the order if you reconciled with the other party. However, this must be filed within the one-month period of your divorce being granted. If that deadline is missed and a divorce is granted, Section 93 of the Act states that you cannot appeal the divorce order. 

Who can apply for divorce? 

Either party can institute divorce proceedings. This can also be done jointly. Section 39(3) of the Act requires that either party must be an Australian citizen, or domiciled in Australia, or ordinarily resident in Australia and for a period of 12 months before the application is filed.

Property settlement time limits 

Applications for an adjustment of property interests must also be made within 12 months from the date when the divorce became final. Otherwise, you will need the Court’s permission to apply. Permission is not always granted. The Court must be satisfied that you or the children would experience hardship if leave were not granted. Therefore, property matters should effectively be resolved prior to pursuing a divorce, this includes: 

  • Finalizing the division of your assets and liabilities;

  • Spousal maintenance; and

  • Child support.

The above issues can be dealt with immediately after separation. 

Children

If there are children under the age of eighteen, parties are required to make proper arrangements for the care, welfare and development of the children when seeking a divorce (Section 57 of the Act). The purpose of this requirement is to ensure that the children’s interests are protected upon the termination of their parents’ marriage. Where the Court is not satisfied that proper arrangements have been made for the children, a divorce will not be granted. Therefore, the Court must be satisfied that: 

  • The children are receiving adequate and proper parenting to help them achieve their full potential; and

  • The parties are fulfilling their parenting duties and responsibilities.

Proof of marriage

If you wish to make a divorce application, you must provide proof of the marriage. This means, the marriage certificate must be filed in accordance with Section 48(2) of the Act. If the marriage certificate is not in English, it must be translated. The person translating the certificate must also file an affidavit verifying the translation and outlining their qualifications. 

There are situations where there is no certificate of marriage, for example: 

  • No certificate was issued;

  • Marriage was not registered;

  • Original certificate was lost or destroyed.

In those situations, the applicant must prove the marriage by filing an affidavit detailing the time and place of the ceremony. The evidence should be corroborated (if possible) by at least one other adult. 

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Samita Dhanapala
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