An application for divorce is made by a party to a legal marriage (as opposed to a party to a de facto relationship) who seeks to end that marriage. A divorce can be applied for by either one or both parties to a marriage.
The principle of no-fault divorce was established by the Family Law Act 1975 (Cth). The Family Court of Australia will not consider whether one party is to blame for the breakdown of the marriage. A divorce will be granted by the Family Court when it is demonstrated that there has been an irretrievable breakdown of the marriage, which must be evidenced by the parties having been separated for a period of no less than 12 months. These are the only grounds needed for a divorce in Australia.
Separation can occur ‘under one roof’: the Family Court may consider a couple to be separated even if they continued to live in the same home during the 12 months prior to an application for divorce being filed. This can occur if, for example, there has been a change in sleeping arrangements, a reduction in joint household activities and a division of finances. In cases such as this, there needs to be independent corroboration that the relationship is in fact over.
There is no requirement to formally seek a divorce order once a marriage has broken down. An application for divorce is separate to other applications in the Family Court, such as for parenting orders or a property settlement.
If you wish to formalise arrangements in relation to your children or your finances, you can agree these with your former partner and ask the Family Court to approve these agreements. Alternatively, you can make an application to the Family Court to decide these matters for you. In general, parties must bring any application for property or financial orders no later than 12 months from the date of their divorce being finalised (otherwise they will be out of time, and so will need to seek leave from the Family Court to still bring such application out of time).
A party to a marriage that has broken down cannot marry another person until they have obtained a divorce, as to do so would mean that that person would be committing the offence of bigamy – a crime which has the potential of attracting a jail sentence.
Once divorced, there is no legal relationship between the two parties – they are no longer husband and wife. This may have a legal knock-on effect to areas such as succession planning, wills and trusts, and as such it is critical that anyone who is contemplating a divorce seeks legal advice.Contact Us Today