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Marriage Breakdown and Separation

Divorce means the termination of a marriage. When a marriage breaks down the parties to a marriage are able to apply for divorce only after being separated for a period of 12 months. To apply for divorce in Australia, at least one of the parties needs to:

• regard Australia as their home and intend to live there indefinitely;
• be an Australian citizen by birth, descent or grant; or
• ordinarily live in Australia and have done so for the 12 months prior to applying for divorce.

You must also satisfy the Court that the marriage has irretrievably broken down and you do not intend to resume the marriage.

If it is a marriage of less than two years, from the date of marriage to the date of filing the divorce application, then the parties to the marriage must attend compulsory counselling before a divorce will be granted. In certain circumstances or where counselling is unable to be undertaken this requirement may be dispensed with.

The period of separation commences from the time one party considers the marriage to be over and communicates to the other party that the marriage is at an end. Often times this is evidenced by the fact that one party moved out of a joint residence, however separation can occur while parties to a marriage continue to live under the one roof. In these circumstances the Court often requires additional evidence from one party and an independent person to support the assertion that the parties were living separately and apart under the one roof, which may include evidence of:

• Whether a physical relationship continued during this time;
• Whether the parties performed domestic services for each other (such as cooking, cleaning, washing)
• Whether the parties represented to others outside of the relationship that the marriage had ended
• Whether the parties continued to share a financial relationship

None of these factors is individually determinative, rather the Court will assess each case on its merits in light of each of these factors and any other relevant circumstances.

Where separation is interrupted by one or more continuous periods of resumption of a marital relationship of less than 3 months the combined periods of separation may be compounded to reach the 12 month period required for divorce. Where resumption of a marital relationship exceeds 3 months then a 12 month separation will need to occur from the end of that resumption before a divorce will be granted.

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Divorce

A divorce application can be made by either party individually or both parties jointly. Where being made individually service of the application must be effected on the other party in accordance with the Rules of the Court and that service must be evidenced to the Court prior to the matter being listed for hearing. The Applicant will need to attend the hearing of the Divorce Application where it is not a joint application and there are children under 18.

At the conclusion of a successful hearing the Court will issue the divorce by granting a Decree Nisi. One month and one day later this order will become a Decree Absolute and will be final. The Court will issue a Certificate of Divorce to each party.

If either party wishes to apply for property or maintenance orders this must be done within 12 months of a Decree Absolute, otherwise leave of the Court will be required to commence proceedings. Property orders or parenting orders can otherwise be done at any time prior to divorce.

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Annulment of Marriage

Annulment is a legal procedure whereby a marriage is declared null and void, as though it had not taken place. An annulment may be sought when it can be established that the marriage is void. This may be because one party did not understand that they were getting married, for instance due to language barriers or intoxication. Alternatively it may arise in circumstances where the marriage was not created by someone with the legal authority to marry or that significant requirements of the Marriage Act were not otherwise complied with.

A legal annulment can be distinguished from a religious annulment of marriage, which is granted by a Church on grounds particular to their faith and is often sought by one party to enable them to remarry within that Church or to avoid a religious prohibition or stigma of divorce.

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