IRRETRIEVABLE BREAKDOWN

In Australia, any party to a marriage is able to apply for divorce without having to explain why – this is referred to as the principle of “no-fault divorce”. The only ground for divorce that the Court must be satisfied with is that the marriage broke down and there is no reasonable likelihood that the parties will get back together, otherwise known as “irretrievable breakdown”. For more personalised information, contact one of our divorce lawyers today.

When can I apply for Divorce?

The parties must be separated for at least twelve (12) months before they can apply for divorce.

In Australia, if parties have been married for less than two (2) years, they must satisfy the Court that they have attended counselling by producing a Counselling Certificate when filing the Divorce Application. If a party is unable to attend counselling, an Affidavit must be filed explaining why.

What must be satisfied to successfully apply for Divorce?

For a Divorce Application to be successfully granted, the Court must be satisfied of the following issues:

Jurisdiction

Either party must:

• regard Australia as your home and intend to live in Australia indefinitely; or
• are an Australian citizen by birth, descent or by grant of Australian citizenship; or
• ordinarily live in Australia and have done so for 12 months immediately before filing for divorce

The parties were separated and living separately and apart for at least twelve (12) months

As mentioned above, the parties must have been clearly separated for at least twelve (12) months.

There is also a requirement that the parties were living separately and apart during the separation period. Whilst this often means living in different houses, there are situations where a married couple can be separated but living under the same roof.

In these circumstances, the Divorce Application must be accompanied by two (2) Affidavits:

• An Affidavit from the filing party(ies) (if it is a joint application, both parties are required to file an Affidavit each) – an “Affidavit as to Separation under one roof” – which explains why the parties were living under the same roof, circumstances which show that the parties were clearly separated (e.g. no sexual relations, sleeping in separate rooms, not speaking, etc); and
• A corroborating Affidavit from a witness, which explains that the witness was aware that the parties were separated despite living under the same roof (e.g. the witness was a relative who would come to the house and notice that the parties were sleeping in separate rooms, and were told by either/both parties that they were separated)

Children

If there are minor children of the relationship, the parties must satisfy the Court that there are proper arrangements in place for each of the children which will not negatively affect the children’s interests if a divorce was to be granted.

This includes satisfying the Court of the children’s:

• Housing;
• Schooling and education;
• Care arrangements;
• Health;
• Contact with each parent; and
• Financial support

Valid marriage

The Court must be provided with a copy of the Marriage Certificate. If the parties were married overseas and the Marriage Certificate is in a foreign language (not in English), a certified translated version must also be provided as well as an Affidavit from the translator.

Service

If a party has filed a Divorce Application, the filing party must serve the sealed copy of the Divorce Application on the other party.

The filing party cannot serve the other party with the documents themselves.

Service must be arranged, and can include:

• By hand (a family member, friend or process server); or
• By post

If the other party is in Australia, the documents must be served at least twenty-eight (28) days before the court hearing.

If the other party is overseas, the documents must be served at least forty-two (42) days before the court hearing.

In the event that the other party cannot be located, the filing party can apply to the Court for substituted service or dispensation of service. The filing party will need to prove that all reasonable steps were taken to locate the party to effect service.

What is the effect of Divorce?

The granting of divorce simply establishes that the marriage has dissolved.

It does not determine any issues in relation to property settlement or parenting.

Parties are able to issue proceedings for property settlement and/or parenting whilst they are separated but still married. However, if a party wishes to issue proceedings to deal with property settlement and/or parenting after a divorce has been granted, they must apply to the Federal Circuit Court of Australia or Family Court of Australia within twelve (12) months from the date of the divorce.

What happens at the Divorce Hearing?

When you have successfully filed a Divorce Application, a hearing date will be allocated.

If the application was made by both parties (joint), the parties do not have to attend.

If the application was made by one party (sole) and there are minor children of the marriage, the filing party must attend.

If the other party opposes the Divorce Application, they should attend to explain to the Court why the Divorce Order should not be granted.

At the divorce hearing, the Registrar will go through the Divorce Application and make sure the parties have complied in terms of the Application, that there was irretrievable breakdown of the marriage, jurisdiction, children’s arrangements, service and any other factors.

If the Registrar is not satisfied, the Registrar may decide to stand the matter in the list so that the parties can attend to resolving the issues, adjourning the matter, or dismissing the application.

If the Registrar is satisfied, they will grant the Divorce. The Divorce Order will be available to the parties online and made available 1 month and 1 day after the divorce hearing. Both parties should wait until the divorce has been granted before making preparations to re-marry.

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