Divorce & separation
Everyone who marries does so with the intention that it will last forever. However, life has its twists and turns and things change over time.
In the past, married people who wished to separate had to prove that they qualified for a divorce. The most common criteria were adultery, cruelty, or desertion without cause for at least two years. Applicants had to prove that their estranged spouse had committed a matrimonial offence while they themselves had not (or if they had, it should be overlooked). Failing to prove their case meant having to stay in their unhappy marriage.
The separation of married couples under Australian law operates on the principle of no-fault divorce.
It does not matter anymore who did or did not do something during an unhappy marriage. All that is needed is to demonstrate that there is an irretrievable breakdown of the marriage through a separation of at least 12 months with no prospect of reconciliation. All time and energy are instead spent on looking towards moving towards the future. Agreements are negotiated and made about the fair division of property. Adequate care arrangements are put in place to make sure children are protected from harm and enjoy meaningful relationships with their parents. As a result, it is common for many people to refer to property division and parenting disputes as a “divorce”. However, divorce only actually means the official ending of a marriage. Putting it that way makes divorce seem quite straightforward, but there are several aspects and issues to consider.
An Australian marriage is defined as being union of 2 people to the exclusion of all others, voluntarily entered into for life. The word people means adults at the time of the wedding. The word people also now includes couples in same sex relationships.
The only ground for divorce needed in Australia is the irretrievable breakdown of the relationship, which is demonstrated by 12 months of separation. However, if you have been married for less than 2 years, you must attempt marriage counselling before being able to file an Application for Divorce.
Before you can divorce, you must first prove that a marriage exists. This is usually done by simply presenting a Marriage Certificate. But sometimes the Marriage Certificate is in a foreign language, records incorrect information, or does not exist at all. In rare circumstances, it is possible to have a marriage annulled if it does not meet the essential criteria.
Before you can divorce, you must also prove that you have been separated for at least 12 months. This can sometimes be difficult if you have lived under the same roof while separated. You will need to present extra evidence from yourself and a third party with your Application for Divorce.
There does not have to be an agreement about separation. If someone wishes to separate from their spouse, they can do so without any agreement or consent. The date of separation does not have to be agreed either. It is the date that one of the spouses regarded the marriage as being over with no prospect of reconciliation.
The filing of an Application for Divorce can either be done solely (without the agreement of your former spouse) or jointly (with the agreement and participation of your former spouse).
If your estranged spouse has filed and served an Application for Divorce, you may not agree with the information in their documents. In those circumstances, you have the option of filing a response. You cannot stop the divorce, but you can dispute the facts upon which the Divorce Order is being made.
There is no appeal from a divorce order. As a result, you must prove personal service of an Application for Divorce before a divorce order is granted. Sometimes it is not possible to personally serve an Application for Divorce on your estranged spouse. You may no longer have their contact details or they are trying to evade process servers.
There is a period of one month and one day between the divorce being granted and the divorce order being made. This period is called decree nisi. Its traditional purpose was to give an opportunity to anyone who may be adversely affected by the divorce from being made final. However, its modern purpose is to give divorcing couples a chance to cancel the divorce before it is made final.
There are four important things to know after the making of a Divorce Order.
First – If a party to the marriage proposes to make an application to a court exercising jurisdiction under the Family Law Act 1975 as to property or as to the maintenance of that party, such application must be made within 12 months from the date upon which this divorce order takes effect. After that time such an application cannot be made without first obtaining the leave of the court to do so.
Second – A divorce order which has taken effect may revoke, or otherwise affect the operation of, the Will of a party. Parties should seek legal advice about their position under the law of the State or Territory concerned. After you have divorced, you should make a fresh Will to protect your intentions and the intended beneficiaries of your estate.
Third – A party to a marriage who marries again before this divorce order takes effect (unless the other party has died) commits the offence of bigamy.
Fourth – If, before this divorce order takes effect, it comes to the notice of a party to the marriage that the other party has died, he or she should file an affidavit or certificate in the office of the court giving particulars of the date and place of death.
If you have any questions about divorce or would like to discuss your individual personal circumstances regarding a separation or divorce, please feel welcome to contact one of our family lawyers by emailing us at [email protected] or calling 08 6141 3227.