Australia has a no-fault system regarding divorce, meaning that there are no reasons required to be argued to obtain a divorce. Likewise, adultery/infidelity unlike other countries around the world may not affect the property division of matrimonial assets in Australia following a divorce. Adultery is also not a crime or suable action in Australia. Further, divorces may be made under either a joint or sole application – meaning that a party may get a divorce from the other party even where one party disagrees to the divorce occurring.
Steps to obtain a divorce
Jurisdiction
The Court has jurisdiction (power to make Divorce orders) where, parties to the marriage are one of the following provided by section 39(3) of the Family Law Act, either party to the marriage; an Australian citizen, domiciled in Australia or an ordinary resident in Australian for at least 1 year proceeding that date. Same sex couples that are married have the same entitlements under the law to obtain a divorce as heterosexual married couples.
Necessary factors for a divorce
The Family Law Act, Section 48, provides the factors necessary for a divorce being; Firstly, that the marriage must have been broken down irretrievably. Secondly, the Court must be satisfied that the parties separated and lived separately and apart for a continuous period of not less than 12 months immediately following the date of filing the application of the divorce order. Thirdly, the Court may not make a divorce order where there is a reasonable likelihood of the parties re-cohabitating.
Meaning of separation– Marriage of Todd (No 2)(1976)
Separation involves cohabitation being brought to an end by the parties through their conduct or the parties otherwise separated and lived apart, regardless of if they lived in the same residence. Separation involves more than just physical separation, and includes the destruction, severance and intention (mental aspect) of the ending of the relationship (In the Marriage of Todd (No 2) 9 ALR 401, Watson J). The marriage must have also irretrievably broken down, meaning that there is no hope for the marital reconciliation of the parties.
Separation under the same roof
In the matter of In the Marriage of Pavey (1976) 10 ALR 259, the Full Court held that a marital relationship varies for different couples and there are different elements to every marriage. Such elements may include the following: ‘dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships and the nurture and support of the children of the marriage.’ (at 13) It also explored that where there is a claim that separation took place, it will be required to compare and contrast the state and elements of the marital relationship before and after the proposed separation. Further, whether a separation has occurred is dealt with on a case-by-case basis.
Where parties separate under the same roof, it would be necessary to prepare and obtain the affidavit of a friend or neighbour over 18, that witnessed the parties having been separated under the same roof and outline the circumstances of the separation and living arrangements of the parties following separation and file this with the divorce Application.
Effect of resumption of cohabitation – Re-cohabitation likelihood consideration
Section 50(1) of the Family Law Act outlines the effect of resumption of cohabitation. Where the parties to a marriage, after separation, resumed cohabitation on one occasion, but, within a period of 3 months after this resumption, again separated and following this, lived separately and apart until the date of filing the divorce application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period but the period of re-cohabitation shall not be deemed to be part of the period of living separately and apart. (50(1)).
Application for a divorce for marriage of less than two years in length
According to section 44(1B), divorce may not ordinarily be granted by the Court if the parties were married for less than two years unless the parties obtain a certificate which states that the parties to the marriage have considered reconciliation with the assistance of an assigned specified person. Such persons must include one of the following:
- a family counsellor,
- if within Division 2 of the Federal Circuit and Family Court of Australia, an individual or organization nominated by a family consultant, or
- where the parties are not in Division 2, an individual or an organisation nominated for the parties by an appropriate qualified officer of the court.
This certificate must also be signed by that specified person.
The Court may in special circumstances however, without such a certificate where the application is not yet filed, give leave for the application to be filed. If the application had already been filed, the Court may declare that the application is satisfied – and valid, as if the court had granted leave before the application was filed. An affidavit outlining the reasons for not attending counselling and the special circumstances of the matter would be best to be prepared and signed before an authorized witness – such as a lawyer, public notary or Justice of the Peace.
Children in a divorce
Declaration – under section 55A
A divorce Order may not take effect, unless the court is satisfied of the following:
- that there are no children of the marriage which are not yet 18 years of age;
- that children of the marriage under 18 are specified in the order and that; the proper welfare, care and development of those children is arranged, or,
- there are reasons that the divorce order should take effect even where the court is not satisfied where such arrangement have been made.
If there are any children of the marriage under 18, then court appearance will be required by both parties to the marriage where a sole Application is made by one party. This appearance would require the outline of the history/date of the marriage, parties details and details of the children, and parenting arrangements to address the above section 55A. These hearings can be adjourned where there is lacking information before the Court which satisfy that the children’s welfare and parenting arrangements have been planned.
Application fee
The application fee for divorce as of 1 July 2023 is $1,060, or there may be reduced fees as low as $350. This application fee is updated every year on the first of July, and can be viewed from the Federal Circuit and Family Court of Australia site, or the gazette Annual federal courts and tribunals fee increases for that year.
Types of divorce
Sole divorce application
A sole divorce application is more costly than a joint application. A sole divorce application involves a single party to a marriage applying solely for a divorce, due to the other party not agreeing with the divorce, or the other party otherwise not locatable. The Applicant party would bear the full fees.
Joint divorce application
A joint divorce application is the simplest and most cost-effective divorce for parties who wish to divorce. It involves a mutual agreement to the divorce, with both parties sharing the costs.
Divorce Order and effect
On the hearing day for a divorce matter, an order will be made on that day by the judicial registrar where there are no issues/disputes and will be granted to the parties and uploaded to the Commonwealth Court Portal one month following the date of the Orders being made. The effect of a divorce is that the parties are no longer married and that they may then remarry.
Property division following divorce
Before considering divorce, it may be important to factor in property proceeding/litigation intentions. This is because, following a divorce, there are only 12 months to make a property claim and begin property proceedings in the Federal Circuit and Family Court. Otherwise, special circumstances would need to be raised and satisfy the Court.
If you require legal advice regarding any divorce, our highly experienced and qualified Family Lawyers at Genesis Edge can help you get the results. Please do not hesitate to contact us on 1300 559 888 or fill out the enquiry form here.