Understanding Divorce in Australia: Legal Process, Requirements, and Considerations

Understanding Divorce in Australia: Legal Process, Requirements, and Considerations

Understanding Divorce in Australia: Legal Process, Requirements, and Considerations

Divorce is the legal end of a marriage (dissolution of marriage). Australia has ‘no fault’ divorce. This means that when granting a divorce, the Court does not consider the reason/s the marriage ended. Neither spouse needs to prove that the other did (or did not) do something that caused the breakdown of the marriage. The only ground for divorce is that the marriage broke down and there is no reasonable chance that the parties will get back together.

The Federal Circuit and Family Court of Australia (the Court) has the jurisdiction or power to deal with divorce under Part VI of the Family Law Act 1975 (Cth). Section 48 of the Act prescribes the legal requirements for a divorce order to take effect:

  1. An application under this Act for a divorce order concerning a marriage shall be based on the ground that the marriage has broken down irretrievably.
  2. Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
  3. A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

You can learn more about this process from our family lawyers in Sydney

The meaning of separation is addressed by section 49 of the Act as follows:

  1. The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
  2. The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

Pursuant to section 55 of the Act, a divorce order takes effect when:

  1. Subject to this section, a divorce order made under this Act takes effect by force of this section:

(a)  at the expiration of a period of 1 month from the making of the order;

(b)  from the making of an order under section 55A;

whichever is the later.

Section 55A of the Act refers to divorce orders where children are involved:

  1. A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:

(a)  that there are no children of the marriage who have not attained 18 years of age; or

(b)  that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:

(i)  proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or

(ii)  there are circumstances because of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made. 

A party to the marriage may marry again, after the divorce order the Act has taken effect by law under section 59 of the Act.

Furthermore, section 60 confirms that no appeal is allowed after a divorce order takes effect.

Children and/or finances and property

It is important to remember that the granting of a divorce order does not decide issues about finances, property and maintenance or parenting arrangements for your children.

To make arrangements about these issues you can:

  • Participate in dispute resolution to resolve or narrow the issues in dispute
  • Make an agreement with your spouse and file it with the Court, known as a consent orders, or make a parenting plan or financial agreement, or
  • Seek orders from a court, where you and your spouse cannot reach an agreement (time limits may apply).

The granting of a divorce does start limitation periods (time limits) for applying to the Court in relation to most financial matters. Most financial/property proceedings arising from the breakdown of a marriage must be started within 12 months of the divorce order taking effect unless otherwise agreed with the other party.

We usually advise our clients to resolve these sorts of issues out of court by way of legally enforceable parenting plans or financial agreements to keep litigation costs down and to allow swift resolution of your matter.

If you need help to make arrangements for your children or finances before or after your divorce takes effect, contact our firm today for a confidential free initial consultation. We have experienced divorce and family lawyers in Penrith, Liverpool, Baulkham Hills, Blacktown, Bankstown, Castle Hill, Fairfield, Western Sydney, etc.

Disclaimer: This is not to be treated as specific legal advice. Please get in touch with our firm to discuss your specific legal matter.

Source: https://www.fcfcoa.gov.au/fl/divorce/divorce-overview