DIVORCE

The Family Law established the principle of no-fault divorce in Australian law. This means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.

Either party may file the application, no matter who left who or who wanted the separation. The parties may also file a joint application. Normally an application for dissolution of marriage will be heard about eight weeks after the filing of the application.

Requirements to grant a divorce

In addition to the requirement that there has been an irretrievable breakdown of the marriage (evidenced by at least 12 months separation) with no chance of reconciliation, a court will not grant a divorce unless convinced that:

• the parties are sufficiently connected to Australia
• proper arrangements have been made for the care of any children who are under 18 years of age
• reconciliation has been considered by the parties where the application is made less than two years after the marriage.

Sufficient connection to Australia

The Family Court cannot grant a divorce unless it is established that either party to the marriage is:

• an Australian citizen
• domiciled (permanently living) in Australia
• ordinarily resident in Australia and has been residing in Australia for at least one year prior to filing the application (s 39(3) Family Law Act 1975 (Cth) (Family Law Act)).

Separated under the same roof

Sometimes, both parties may continue living under the same roof despite being separated. It is essential that an intention by at least one party to terminate the relationship can be proven. A divorce order can be obtained where the parties have spent some or all of the separation period in the one house but have each done their own household work and have had no sexual relations. Other relevant factors may include the extent to which they have separated their finances, and whether they have continued to present themselves as a couple to their social network Where it is alleged that the required period of separation took place wholly or partly while the two parties were under one roof, corroborative evidence must be given in an affidavit by the applicant and an affidavit by an adult third party, setting out both the circumstances prior to, and after the separation.

De Facto

In relation to children’s orders, it is irrelevant whether or not the parents are or were married, de facto or of the same sex.

It is necessary, however, to prove that the parties are in a de facto relationship. Court may make a property order in relation to a de facto relationship only if it satisfied that:

• there has been a de facto relationship between the parties for at least two years
• there is a child of the de facto relationship who is under 18
• the de facto partner who applies for the order made substantial contributions of a kind mentioned in Family Law Act, and failure to make the order would result in serious injustice to the partner, or
• the relationship was registered under a state or federal law.