Divorce

A “decree of dissolution of marriage” is what is commonly known as divorce.

A “decree of nullity” is made if the marriage is void, for example, when one party was already married, or the parties were within a prohibited relationship, or where there was mistake, duress or fraud, or where a party was not old enough to marry.

Legal terms: “dissolution” and “nullity”

A “decree of dissolution of marriage” is commonly called a divorce.

A “decree of nullity” is made if the marriage is void. A marriage is void if:

one person was already married;

the people were in a prohibited relationship;

there was a mistake, duress or fraud;

a person was not old enough to marry.

Who can apply for a divorce?

In Australia, under the FL Act (s 39(3)), either person in a marriage can apply for a divorce, as long as one person in the marriage is:

an Australian citizen;

domiciled in Australia; or

usually a resident in Australia and has been so for one year immediately before the filing of the application for divorce.

“Domicile” is defined in the Domicile Act 1982 (Cth); a domicile is a person’s permanent legal residence.

A married woman now has a separate domicile to that of her husband (s 6).

The domicile of children who are living with one parent is defined as the domicile of the parent with whom the child has their principal home (relevant for residence and maintenance proceedings) (s 9). To be a permanent resident, the person must have an intention to live indefinitely in a country (s 10).

Which courts can grant a divorce?

The Family Court and the Federal Circuit Court can grant a divorce (decree of dissolution of marriage). Only the Family Court can grant a decree of nullity.

What are the grounds for divorce?

The only ground for divorce (decree of dissolution of marriage) under the FL Act (ss 48–50) is the irretrievable breakdown of the marriage. This is proven by showing that the couple has separated and have lived separately and apart for:

1 a continuous period of 12 months immediately before the date the divorce application was filed; or

2 a total period of 12 months with only one resumption of cohabitation (for no longer than three months) within that period.

The court must be satisfied that:

1 the parties have been separated for 12 months; and

2 it is unlikely that cohabitation will resume.

The couple may be considered to be separated even if cohabitation was brought to an end by the action or conduct of only one of the people in the marriage.

The couple may be considered to be separated and considered to have lived separately and apart for 12 months, even if they have continued to live in the same residence or if either person has rendered some household service to the other. If the spouses have established “separate households” under the same roof and the court is satisfied that there has been a destruction of the consortium vitae (the life blood of the marriage), it should be possible to establish that the couple has separated.

The question of whether the marriage has broken down depends on the facts of each individual case. However, the court will consider the normal elements of consortium vitae when deciding whether or not the marriage has broken down.

The normal elements of consortium vitae (the presence of which would indicate that the marriage has not broken down and the absence of any one of which would be some indication that the marriage has broken down) are:

1 communication between the parties and sexual intercourse;

2 living under the same roof;

3 spending time together socially and looking after and caring for each other;

4 public recognition of each other as spouses;

5 economic or financial unity or cooperation;

6 private acceptance of each other as spouses;

7 communication between the parties during any separation;

8 there are reasons for any separations that are consistent with the continuation of the matrimonial relationship; for example, absence due to business and work commitments, or other professional engagements, absence for reasons of health or vacation; and

9 the nurture and support of the children of the marriage.

In cases where parties are separated, but still live under the same roof, the court will require confirming evidence of this from the parties and other witnesses.

Counselling required in short marriages

An application for divorce (decree of dissolution of marriage) cannot be filed within two years of the start of the marriage without the court’s permission, unless a counselling certificate is filed with the application. The certificate must state (in the prescribed form) that the people in the marriage have seen a marriage counsellor and have discussed reconciling. The certificate must be signed by the marriage counsellor (s 44(1B) FL Act).

Note that instead of a marriage counsellor, couples may see another suitable person or organisation nominated by either the Principal Director of Court Counselling or by an appropriate officer of the Family Court.

Special circumstances

If the court is satisfied that there are special circumstances and that the application for divorce should proceed even though the people in the marriage have not attended counselling, the court may allow the application to be filed or, if the application has already been filed, to grant a divorce (s 44(1C)).

There must still be a 12-month separation before the application for divorce can be filed.

What are the grounds for a decree of nullity?

The grounds for a decree of nullity are that the marriage is void because:

1 one person is lawfully married to another person (bigamy);

2 the couple are in a prohibited relationship (e.g. they are brother and sister);

3 consent to the marriage was obtained through duress, fraud or mistake;

4 one person was not old enough to marry (ss 23, 23(B) Marriage Act 1961 (Cth) (“Marriage Act”));

5 the ceremony was phoney because certain formal requirements of the Marriage Act were not followed.

How are divorce proceedings started?

The following documentation is required to begin proceedings for dissolution and nullity:

1 an application (note that the application form should be prepared by either party or a legal practitioner);

2 a marriage certificate (the original, or a certified copy); and

3 a declaration by a solicitor (or officer of the court if the applicant is unrepresented) that information from the Director of Counselling and Welfare has been given to the applicant. This information is about the legal and possible social effects of divorce.

Filling out all the forms correctly and serving them on the other party can seem complicated. Do-it-yourself kits are available from the Family Court of Australia (seeContacts”).

Service of documents

It is a requirement of the court that all proceedings issued from the court by the applicant must be formally brought to the notice of the other party to the proceedings. The court must be satisfied that any other relevant party to the proceedings has been formally “served” with notice of the proceedings.

“Service of court documents” is a legal term meaning they have been “officially and formally brought to the attention of the other party”. For the applicant to prove that he or she has properly effected service on the other party, it is necessary to lodge documents of proof of service with the court.

Any court is most reluctant to make any order whatsoever affecting the rights of another without that party being present in court. However, if the applicant can prove to the court that any other relevant party to the proceedings has been served with notice of the proceedings, and if that party is not present at court on the hearing date, the court then may proceed to hear the case and make orders in the absence of any other party.

An application for dissolution or nullity must be served on the respondent. This is done by serving a sealed copy of the application on the respondent either personally or by post. If serving by post, a form for acknowledging service of the application, and a stamped envelope addressed to the applicant or the applicant’s solicitor, must be delivered. A document describing the legal and possible social effects of divorce must also be delivered.

An affidavit of service is generally then completed by the person who served the documents. Anybody except the applicant can serve the documents in person. Anybody including the applicant may, however, serve them by post.

When service is personal, oral or affidavit evidence can be given to identify the signature on the acknowledgment of service. When a person refuses to sign an acknowledgment of service, evidence can be given by producing a photograph and verifying that the photograph is of the person served.

When service is by post, the respondent is requested to return a form acknowledging service and giving an address for service of future documents. In practice, personal service on respondents is preferable to attempting service by post, as there is more likelihood that service will be effected and the all-important service documents will be properly completed and available to prove service at the court hearing. Once service has been completed, the service documents may be either filed at the court prior to the hearing or handed up to the court on the day of the hearing.

Service may be dispensed with when the court thinks it is necessary or expedient to do so. This applies where the applicant has taken every reasonable step to find the respondent.

What happens at court?

1 All proceedings in the Family Court and Federal Circuit Court are heard in open court. However, the court can order specific people to not be present in court. Proceedings are fairly informal and the court tries to ensure that they are not protracted (s 97 FL Act).


NOTE

The media may report family law cases, but it is an offence to identify a party to the proceedings, a witness, or a person associated with the proceeding. There are wide definitions of anything that may identify a person (e.g. style of dress or occupation) (s 121). The penalty for this is imprisonment for up to one year.


2 Spouses can be forced to be witnesses, and they are required to disclose communications made between them during the marriage (s 100).

3 The court can forbid questions that are offensive, scandalous, insulting or humiliating unless it is satisfied that in the interests of justice the question should be answered (s 101).

4 Proof of service may be given by affidavit or oral evidence.

5 A subpoena (i.e. a summons to appear to give evidence and/or produce documents) may be used to compel a witness to attend court.

6 A person summonsed is required to attend the hearing unless excused by the court, and to produce whatever documents etc. as directed by the summons. The court can issue a warrant if the person does not attend. Non-compliance may result in an order for costs caused by the failure to comply, as well as a broad range of other penalties available to be imposed by the court. A subpoena requiring the production of documents must be served seven clear days prior to the hearing. All subpoenas must be served personally, and conduct (fare) money must be provided.

7 The scale of witness fees and allowances is tied to the Supreme Court scale in the particular state or territory.

Hearing of divorce and nullity applications

The following points are important for the court hearing:

1 Parties may appear personally or can be represented by a legal practitioner.

2 In undefended divorces where there are no children under 18 years, neither party has to attend court, provided the proper request has been filed.

3 A decree nisi (initial decree for dissolution of marriage) will not become absolute unless the court is satisfied that proper arrangements have been made for the children, so the application should set out these details (s 55A).

4 Evidence in all cases must be given by affidavit unless the court otherwise directs. In most cases no oral evidence is given.

How is an application defended?

An application is defended by the respondent filing a response. The response is a document in which the respondent gives details of any points in the application with which he or she disagrees and then gives details of the orders sought from the court.

1 A response in proceedings for dissolution and nullity must be verified by affidavit. The time allowed for filing a response after the service of the application is 28 days if the respondent is served in Australia and 42 days if outside Australia.

2 If the response is filed late, the proceedings shall continue as if the response had not been filed unless the applicant consents in writing to the late filing or the court otherwise directs. The written consent to the late filing may be endorsed on the document. In practice, the court will allow a respondent to be heard at any time in the interest of justice. There may, however, be a penalty by way of costs, particularly if the proceedings are required to be adjourned.