Divorce and Nullity of Marriage in Australia

Divorce is one of the legal processes relating to family relations cases under the Family Law Act 1975 (FLA) where a party files an application to legally end the marriage with the appropriate court on the ground that the marriage has broken down irretrievably.

Divorce

Divorce is a declaration of a court that a marriage is already terminated or dissolved based on the ground provided by the applicable law. The marital bond or union is cancelled as well as some of the duties and responsibilities between the parties. This is one of the most used processes in Australia to legally and formally end the marriage. The divorce order can only be obtained by a party by filing an application with the appropriate court.

This is different from the application for a decree of nullity of marriage. The application for a decree of nullity of marriage is based on the ground that the marriage is void. In divorce, there is no need for the court to declare that the marriage is void. Instead, it will just issue a divorce order declaring that the marriage is terminated or dissolved.

Grounds for divorce

The Family Law Act 1975 provides only one reason for divorce in Australia. If the marriage has broken down irretrievably, an application for a divorce order in relation to a marriage may be filed. (Section 48 (1), FLA) This ground has to be proven by the applicant for the divorce order.

Irretrievable breakdown

The court will issue the divorce order only if it is satisfied and it was established that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months before the filing of the application for divorce order. (Section 48 (2), FLA) This is what we called the “irretrievable breakdown” in which the separation of the parties continued up to 12 months. The court must be convinced that the parties have no intention to reconcile so that it may issue the divorce order.

The 12 month period must be strictly observed. An application for divorce was held to be premature when a party to a marriage filed an application on the exact date of the first anniversary of the date of separation. (Bozinovic and Bozinovic (1900) FLC 91-121). The proper date or the earliest day that a party can file for divorce order is the day after the first anniversary of the separation.

H and W separated on 2 March 2014. The earliest possible date that H or W can file an application for divorce orders is 3 March 2015.

It the court is satisfied that the ground for divorce was sufficiently established by proving the irretrievable breakdown, it may now issue the divorce order. However, the court will not issue the divorce order if it is satisfied that there is reasonable likelihood of cohabitation being resumed. (Section 48 (3), FLA) This means that if there is a possibility that the parties will reconcile and live together again as husband and wife, the court will not issue a divorce order.

Where both an application for a decree of nullity of a marriage and an application for a divorce order in relation to that marriage are before a court, the court shall not make a divorce order in relation to the marriage unless it has dismissed the application for a decree of nullity of the marriage. (Section 52, FLA)

Separation

The separation needed so that a divorce order will be issued refers to the physical separation of the parties. It must be clear that either or both of the parties have the intention to separate from the other or does not want to continue living with the other as husband and wife.

However, physical separation alone is not sufficient to say that the marriage becomes irretrievably broken. It must be accompanied with the intention by one or both of the parties to cut or to discontinue the marriage.

The intention must be actually acted by one or both of the parties. It means that they actually separated or discontinued the marriage. And if only one party who has the intention to separate or discontinue the marriage, he or she must communicate to the other party of such intention.

It should be noted that the parties may be said to have separated even if they if they continued to reside in the same residence or that either party has rendered some household services to the other. (Section 49 (2), Family Law Act 1975)

However, this is a tough risk for the parties to take while the application for divorce is pending with the court since it is necessary to convince the court that there was indeed a separation and that there was an intention to cut the marital ties. An affidavit will then be required by the court stating the circumstances of the separation.

It is thus recommended that the parties should live separately while the application for divorce is pending with the court to avoid any complications that may occur during the process of getting the divorce order.

Marriage of less than 2 years

An application for divorce will not be entertained by the court if it is filed within 2 years after the marriage, unless the applicant was able to get the consent of the court or that there is a signed certification from a specified person stating the circumstances required by the law. (Section 44 (1B), FLA)A specified person may be a family counselor; or if the court is a Family Court, the Federal Magistrates Court or the Family Court of a state – an individual or an organisation nominated for the parties by a family consultant (Section 44 (1B (a)(i)); or if the court is not the Family Court, the Federal Circuit Court of Australia or the Family Court of a State—an individual or an organisation nominated for the parties by an appropriately qualified officer of the court (Section 44 (1B (a)(i)).

Reconciliation

The court must always exert effort towards the reconciliation of the parties. From time to time, the court must consider whether reconciliation of the parties is possible. If, during the proceedings, the court considers, from the evidence in the proceedings or the attitude of the parties to the marriage, that there is a reasonable possibility of reconciliation between the parties, the court may adjourn the proceedings to give the parties the opportunity to consider reconciliation. (Section 13 (2), FLA)

It is important to know that if the parties resume living together after filing of a divorce application, it may lead the court to presume that there is a possibility of reconciliation. However, the application for divorce order will not be affected unless either party will prove to the court that there is indeed a likelihood of cohabitation.

When divorce order takes effect

If the court is satisfied that the ground of divorce is present, it will now issue a divorce order. The divorce order will not immediately take effect. It will only take effect after 1 month from the issuance of the divorce order or as the court will order, whichever is the later. (Section 55(1), FLA)