In Australia, the notion of no-fault divorce applies. This means that when the Court is assessing a marriage, they are not concerned with why the marriage broke down, but with whether or not there is no reasonable likelihood of the parties resolving their differences and resuming union.
A point to remember is that the granting of a divorce does not determine other issues such as financial agreements, property settlements or child related matters. It simply recognises the end of a marriage.
Requirements for obtaining a divorce.
The court has power to grant a divorce if either party has one of the following characteristics:
- Regards Australia as home and intends to live in Australia indefinitely; or
- Is an Australian citizen by birth, descent or by grant of Australian citizenship; or
- Has lived in Australia for a minimum of 12 months, or has done so directly before filing for divorce.
The court must be satisfied, based on all evidence that has been submitted, that the relationship has broken down irretrievably and that the parties have been separated for a minimum of 12 months prior to filing for divorce. A couple may live together under one roof but in these circumstances need to prove that they are not living as husband and wife.
If a couple reconcile during the separation period for no more than three months those three months are not counted as part of the 12-month separation period.
The court will not grant a divorce where it is unclear that appropriate arrangements have been implemented for the children. Such arrangements are not required to be formal but the court must be satisfied at the time of the hearing that the children are receiving appropriate care and guidance. An application for divorce must be served properly.
The Court must be satisfied that the other party is aware of the application and the date on which it is to proceed to be heard. Generally, an Affidavit from the party serving the application or acknowledgement from the receiving party is sufficient proof.
How to file an application?
When applying for a divorce, the application must be completed, sworn and filed with the Federal Circuit Court. The hearing date for when the divorce application is given, is generally two months after the date of filing. The other party must be served with the application at least 28 days before it is to be heard, or in circumstances where the other party is overseas, 42 days.
When filing a divorce application in Australia, the application must be filed with the Federal Circuit Court along with a filing fee and heard at first instance by a Registrar of that Court. In order for the Registrar to grant a divorce, the requirements of the Family Law Act (as outlined above) must have been met.
Service and notice
Unable to locate your spouse?
If you are in a situation where you are unable to locate or contact your spouse to serve them with an application for divorce, there are other options available. You may make an application to dispense with service or an application for substituted service. In response, the court may make those orders, by virtue of your efforts to serve the application in circumstances where your spouse is aware of the divorce hearing or deem that your spouse is aware of the application.
In making those orders, a court will take into consideration whether you have taken adequate steps to locate your spouse. These requirements may change depending on your situation. Since these requirements vary from case to case, it is advised to seek assistance in order to satisfy the court.
A Decree of Nullity means that the parties have never been married and that the marriage did not exist in the eyes of the law. The Family Court is the only court which has the jurisdiction to make such a declaration. The following circumstances deem a marriage void:
- Either one of the parties was married to someone else at the time of the marriage.
- The parties are in a prohibited relationship, meaning that a party is intending on marrying their grandparent, parent, sibling or half-sibling.
- The formal requirements as by the Family Law Act have not been satisfied and correctly followed.
- The consent of either of the parties is not true consent such as:
- The consent was obtained by duress or fraud;
- Either party mistakenly identified the other party or the nature of the ceremony;
- Either party is mentally incapable of turning their mind to the nature and effect of a marriage ceremony;
- Either party is not of a marriageable age.
As neither party has been married, the parties can revert to the status of ‘never validly married’. This may be a relevant consideration in circumstances when you are contemplating having a religious marriage ceremony. Moreover, there is no jurisdiction for the Court to seek a property adjustment, however depending on the individual circumstances, de facto provisions may apply.
Remarrying and bigamy
In Australia, it is illegal to marry someone whilst you are still married to someone else, therefore you must obtain a divorce order before you marry again. If you have the intention to marry, you must wait until all of the formal and procedural requirements have been satisfied and a Decree of Absolute has been granted by the court.
However, you may lodge a Notice of Intended Marriage with an authorised marriage celebrant at least one month prior to undergoing a marriage ceremony and must comply with other requirements of the Marriage Act 1961. The authorised celebrant must be shown proof, being either the original or a certified copy of the divorce order before being able to legally wed the parties.
The granting of a divorce does not mean that the court concurrently makes orders in relation to property division, spousal maintenance or child related matters.