LexisNexis Practical Guidance®

Unlike many countries, “fault” need not be proved by the applicant to be entitled to a divorce in Australia. That is, Australia has “no fault” divorce.”

Provided an applicant can show that the marriage has broken down irretrievably and that the parties have been separated for a period of 12 months with no reasonable likelihood of resuming cohabitation, a divorce order will be granted. Where there are children under 18 years the court will also need to be satisfied that proper arrangements have been made for their welfare.

The parties may be separated but living under the one roof; in those cases, evidence of the fact that the parties were actually separated must be filed by way of affidavit evidence, so the court may make a finding that they are satisfied the parties were actually separated. The applicant must provide evidence of how their domestic arrangements have changed since separation and an independent witness must also verify what they have observed.

The court does not have the power to waive the requirement of the parties being separated for 12 months, nor does the court have the power to shorten the time period, even if the parties consent.

See Separation for 12 months prior to filing.

If the parties reconcile during the 12 month separation period, this may not necessarily mean that the required 12 month period commences again. The court will be required to look at the length of time of the reconciliation and deal with the separation period in one of two ways:

• • If the parties reconcile for a period less than 3 months, the time of the actual reconciliation will be added on to the end of the required 12 month period, increasing the time period but not requiring the time period to commence again.
• • If the parties’ period of reconciliation was for a period greater than 3 months, the 12 month separation period recommences and the parties will be required to wait a further 12 month period prior to being able to file for divorce.

See Effect of resumption of cohabitation.

The court also has the power to require the parties to attend counselling prior to granting a divorce order. The court may order counselling either:

• • where the parties have been married for less than a two year period: see Applying for a divorce within two years of marriage; or
• • where the parties have children under the age of 18 years of age and the court is not satisfied that the arrangements for the children are appropriate: see Divorce and the care and welfare of children.

It is relatively straightforward for a party to apply for a divorce themselves, either by filing hard copy documents or by electronically filing their application via the Commonwealth Courts Portal (CCP). In order to e-file their application, a party needs to firstly register with the CCP, be able to upload the necessary supporting documents and pay the application fee using a credit card.

Most applications can be done electronically using the CCP although it should be noted that currently, same sex applications cannot be done via the CCP.

Slightly different requirements apply depending on whether it is a sole or a joint application. All divorce applications are commenced in the Federal Circuit Court or, in Western Australia, the Family Court of Western Australia. The following documents are required to be e-filed () via the Commonwealth Court Portal:

If a party seeks a divorce from their spouse, the following documents are required to be e-filed in the Federal Circuit Court (or, in Western Australia, the Family Court of Western Australia) via the Commonwealth Court Portal:

• •completed Application for Divorce (online application form on the Portal);
• •a copy of the Marriage Certificate;
• •filing fee or an application for a reduced filing fee; and
• • additional documents may be required in certain circumstances including:
• • ◦ where the application is filed within 2 years of the date of marriage (counselling certificate);
• • ◦ where an application to dispense with service or for substituted service is made (affidavit of service); and
• • ◦ where separation under the one roof is relied upon (supporting affidavits).

See Divorce procedure.

At the time the documents are filed a hearing date will be allocated. Normally, the hearing date will be about eight weeks after the date of filing if the respondent resides in Australia or 12 weeks after the date of filing if the respondent resides overseas.

A sealed copy of the application for divorce must then be personally served on the respondent. In addition, a sealed copy of any supporting applications and affidavits that have been filed must also be served with the application for divorce.

If the respondent is present in Australia, the documents must be served at least 28 days prior to the hearing date. If the respondent is overseas, the documents must be served at least 42 days prior to the hearing date.

Proof of service is required to be filed with the court, usually by way of an affidavit of service.

See Service requirements and Service overseas.

If the applicant does not know the whereabouts of the respondent, the applicant may make an application to the court either to have the requirement for personal service dispensed with all together, or alternatively, to seek an order for substituted service of the documents on a third person who, it is believed, has regular contact with the respondent and is able to bring the documents to the respondent’s attention.

See Dispensing with service and Substituted service.

If the respondent wishes to dispute any of the statements of fact set out in the application for divorce (in particular, the date of separation) the respondent must file a response to divorce with the Federal Circuit Court prior to the hearing date. There is no filing fee payable in respect of a response to divorce.

The response must then be served on the applicant by forwarding a copy of the response to the address for service shown on the application for divorce.

The respondent must then attend court on the hearing date, otherwise the response will not be considered by the court and the application for divorce may be considered in the respondent’s absence.

See Divorce procedure — Response.

When completing the application for divorce, there is an option for the applicant to indicate whether they wish to attend the hearing of the application for divorce. If there are children under the age of 18 years the applicant (or their legal representative) is required to attend on the hearing date to address any questions the court may have regarding the care and welfare of such children.

When the matter is called, the presiding registrar will consider all documents filed on behalf of both parties and will then proceed by either:

• • granting the divorce; or
• • by giving such directions to provide evidence as are necessary to satisfy the court that all procedural requirements have been met or dispensed with.

If the respondent asserts that the parties have not been separated for a period of 12 months, then the registrar will usually make directions that both parties file evidence in respect of the circumstances of separation and will then transfer the matter to a judge of the Federal Circuit Court (or, in Western Australia, a judge of the Family Court of Western Australia) for defended hearing on another day. The registrar does not have the power to hear a defended application for divorce.

If the court proceeds to grant the divorce, the court must:

• • be satisfied that the marriage is proved and the court has jurisdiction to hear the matter: see Domicile, citizenship and ordinary residence;
• • be satisfied that there has been an irretrievable breakdown of marriage: see Separation for 12 months prior to filing;
• • be satisfied that service has been effected: see Service requirements; and
• • make a declaration regarding the care and welfare of any children of the marriage, which can be:
• • ◦ that there are no children of the marriage under 18 years of age; or
• • ◦ that there are children under the age of 18 years (who must be specified) and that the court is satisfied that proper arrangements for the children have been made; or
• • ◦ that there are children under the age of 18 years and there are circumstances by reason of which the divorce order should be made even though the court is not satisfied that proper arrangements have been made: see Divorce and the care and welfare of children.

Practice Tip: Proper arrangements does not mean “ideal” or even arrangements that both parties are happy with or consent to. It is common for parties to divorce where, for example, care arrangements for children are being negotiated or contested. The court just really wants to know that the children are being cared for and that arrangements for their longer term care will be sorted out.

Once a divorce is granted, it will usually become final one month after the divorce hearing after which the divorce order, can be provided by the court or will be available from the Commonwealth Courts Portal website.

Once the court makes a finding that all requirements for a divorce are satisfied, the court will make a divorce order (the decree nisi). A divorce becomes final and binding when a divorce order (the decree absolute) issues one month from the date the divorce was granted, or such other time as ordered by the court.

Since February 2010, the Federal Circuit Court will only issue a digital certificate of divorce. It is recommended that on divorce, a party make a new Will to reflect their new situation.

Once a divorce is final and the court has issued a divorce order, both parties are able to remarry. When filing their Intention to Marry, a divorced party is required to provide proof of their divorce. Since February 2010 the Federal Circuit Court will only issue a digital order with an electronic seal and signature.

Before the date of finalisation of the divorce, both parties are still legally married and it is a criminal offence to marry another person.

See Ability to remarry.

The finality of a divorce order also may affect any nominations made to the former spouse in a party's Will and it is advisable, after a divorce order has issued, for both parties to review their Wills, as well as any nominations they may have on both superannuation entitlements and life insurance entitlements. The effect of divorce on a party’s Will is outlined in the applicable legislation of the state or territory in question. It may be prudent for your client to obtain advice from an estate planning lawyer prior to any application being filed.

In NSW, if you divorce after you make your Will, any gift to a former spouse is revoked. Your spouse's appointment as executor, trustee or guardian in the Will is also cancelled, but will not cancel an appointment of a former spouse as trustee of property left on trust for beneficiaries that includes your children and the former spouse.

See Effect on wills.

One of the most disputed areas of litigation arises once the final divorce decree is issued. Parties have 12 months in which to commence property settlement proceedings. Where the court finds that it is just and equitable, under s 79 of Family Law Act 1975 (Cth) it may order that property held either jointly or solely may be transferred between the parties. A party may be ordered to pay spousal maintenance and creditors may also have a claim on marital property in the court process.

See Effect of divorce on property.

Like many other aspects of family law there is an appeal process in relation to a divorce which is commenced by filing a Notice of Appeal with the Family Court.

A divorce may also be rescinded prior to the divorce order coming into effect, that is, prior to the final divorce order issuing from the Federal Circuit Court (or, in Western Australia, from the Family Court of Western Australia).

See Appeal.

A party to a marriage who asserts that the marriage was not properly entered into may file an application for annulment of marriage with the Family Court of Australia (or in Western Australia, the Family Court of Western Australia). The Federal Circuit Court does not have jurisdiction to hear and determine an application for annulment.

An annulment will be granted by the court if it is satisfied that the marriage was null and void because (s 23 and s 23(B), Marriage Act 1961 (Cth)):

• • one of the parties was already married to another person;
• • one of the parties was not, at the time of the marriage, of marriageable age;
• • the parties were in a prohibited relationship;
• • there was not voluntary consent by one or both of the parties;
• • there was a mistaken identity as to one of the parties to the marriage; or
• • one of the parties was unable to understand the effect of the marriage due to mental impairment or incapacity.

See Grounds for nullity.

To commence proceedings for a nullity of marriage, the following documents should be filed:

• • an Initiating Application;
• • an Affidavit in support detailing the facts relied on to have the marriage annulled. The affidavit must clearly identify the grounds relied on and the facts necessary to establish those grounds;
• • in nullity applications, supporting documentation may be important depending on the ground relied on; and
• • the filing fee or application to have the filing fee reduced.

If an application for an annulment is successful, a decree of nullity will be granted by the court. A decree of nullity is an order which declares that there was no legal marriage between the parties. A decree of nullity is effective immediately upon the granting of the order.

As to whether a decree of nullity made in Australia will be recognised in overseas countries, see Recognition overseas.