DIVORCE

The Family Law Act 1975 (Cth) ("the Family Law Act") is the legislation that deals with divorce. It allows people to apply to the Family Court for the dissolution of a marriage (a divorce) either individually (as a sole applicant) or together (as joint applicants).

The Act encourages parties to negotiate disputes in their early stages. Counselling for parties in disputes over children is nearly always ordered as a first step and in most cases (the exception being where there is family violence), it is compulsory prior to any litigation commencing. Similarly, conciliation conferences with a Registrar of the Family Court are a mandatory step in pursuing a property application

Where the parties cannot resolve their dispute, the parties can apply to have it decided by a Judge of the Family Court or by a Federal Magistrate in the Federal Magistrates Court.

The sole ground for divorce is the 'irretrievable breakdown' of the marriage. This is proven by showing that the parties have separated for a continuous period of at least 12 months immediately before the divorce application. The Court must be satisfied that the parties have been separated for 12 months and are unlikely to start living together again. The Court will consider the couple to be separated even if it was only one party who initiated or caused the separation.

The parties may be held to have separated even if they have continued to live in the same home. In such cases the court will normally require corroborative evidence third persons.

The question of whether the marriage has broken down, depends upon the facts of each case. Factors which may or may not indicate marriage breakdown, include whether:

To apply for a divorce, you must complete an Application for Divorce form, file it with the court and pay the application fee (you may be eligible for a fee exemption or waiver). You may prepare your own divorce application or ask a lawyer to do it for you. The Application for Divorce Kit has instructions for completing the application and filing it.

Filling out all the forms correctly and serving them on the other party can seem complicated so contact your local community legal centre if you need help (see the 'Contacts & Further Information' section on the other side of the page).

Injunctions are orders given by a court requiring a party to stop performing an action. They can be used for the protection of a spouse or child or in relation to property. They can also be used to restrain a party from entering a place of work or place of education of a child.

You can apply for an injunction even if there is no actual violence but the children are adversely affected by the behaviour. Other situations which may require injunction proceedings are when a person threatens to take children away or tries to stop the other person from living in the family home or indeed where a person refuses to leave the home.

The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) implements a new system of Family Dispute Resolution, a key feature of which is compulsory family dispute resolution before the filing of a court application. The object of this is to compel people to visit a family dispute resolution practitioner (previously called a counsellor or mediator) and make a genuine effort to resolve their dispute.

Presently, new Family Dispute Resolution centres are being established to provide the above compulsory service, though family dispute resolution may be provided outside these centres.

Exception for violence or abuse: The requirement to attend family dispute resolution prior to filing a court application does not apply where there are allegations of child abuse or family violence.

Under the Family Law Act, the court has the power to make orders about rights to property between married people. Alternatively, the parties can reach their own agreement about property. This is known as a consent order. Legal advice should always be obtained prior to agreeing to any consent order. If it does go to court, there are a number of things that the court will consider, such as:

Property disputes including maintenance between unmarried couples may now be heard under the FLA if the couple separated after 1/3/2009. These relationships are defined as ‘defacto’ and include same-sex relationships. The parties need to have been in a relationship for a period of two years and separated after 1/3/2009.

There is a general right of appeal from final orders of the Family Court. Time limits do apply, and advice should be obtained without delay if an appeal is considered.

For more information on this subject refer to The Law Handbook chapter 5.1