Divorce is often the most procedural part of a separation, and the part clients worry about least once it is explained. It is a single, discrete application to the Federal Circuit and Family Court of Australia, decided on narrow criteria. The substantive questions — where the children live, how property and superannuation are divided, whether maintenance is payable — run on their own tracks and are neither resolved nor improved by obtaining a divorce order.
Divorce and separation are different things
Separation is a factual state: the marriage has come to an end and the parties are living separately and apart. Divorce is a court order that formally dissolves the marriage. You can be separated for years without divorcing, and you can finalise parenting and property arrangements without a divorce order.
What divorce does change is marital status — the ability to remarry — and it starts the 12-month limitation period for financial proceedings described below.
The ground: irretrievable breakdown
There is only one ground for divorce in Australia. Section 48 of the Family Law Act requires that the marriage has broken down irretrievably, and provides that the ground is held to be established 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 filing of the application. In practice this is why applications are prepared once at least 12 months and one day have passed since separation.
The court will not make a divorce order if it is satisfied there is a reasonable likelihood of cohabitation being resumed. Fault, conduct and who ended the relationship are not relevant to the application.
Separation under one roof
Parties may be held to have separated even though one party alone brought the cohabitation to an end, and even though they continued to live in the same residence or one continued to perform some household services for the other (section 49). Separation under one roof is therefore recognised, but it must be proved.
Where the parties have lived in the same home during all or part of the 12-month period, the court expects supporting affidavit evidence. That evidence usually addresses when and how the separation was communicated, changes in sleeping and domestic arrangements, the separation of finances, whether the parties presented to others as separated, and any government agency that was notified. An affidavit from a third party who observed the change is commonly filed as well.
Jurisdiction: who may apply in Australia
Proceedings for a divorce order may be instituted if, at the date the application is filed, either party to the marriage is an Australian citizen, is domiciled in Australia, or is ordinarily resident in Australia and has been so resident for one year immediately preceding that date (section 39(3)). Only one of those connections is needed, and only one party needs to satisfy it.
A marriage that took place overseas can be dissolved in Australia if the jurisdictional requirement is met. Where the marriage certificate is not in English, a translation and the translator’s affidavit are filed with the application.
Sole and joint applications
Proceedings for a divorce order may be instituted by either party to the marriage or jointly by both parties (section 44(1A)). A joint application avoids the need for service and is usually the simpler course where the parties are cooperative. A sole application is made by one party and must be served on the other.
Service is a procedural requirement with its own rules and evidence. Where the other party cannot be located, applications for substituted service or for dispensation from service are available, supported by evidence of the enquiries that have been made.
Children under 18
Where there are children of the marriage under 18, a divorce order does not take effect unless the court has declared that it is satisfied either that there are no such children, or that proper arrangements in all the circumstances have been made for their care, welfare and development — or that there are circumstances by reason of which the order should take effect anyway (section 55A). If the court doubts whether the arrangements are proper, it may adjourn until a report is obtained from a family consultant.
This is not a determination of parenting arrangements. The court is checking that sensible arrangements exist, not choosing between competing proposals; parenting orders are a separate application.
Attending the hearing
Many divorce applications are decided without the parties attending. Whether attendance is required depends on the type of application and whether there are children of the marriage under 18; the court’s divorce information sets out when a party is expected to attend and how the hearing takes place. The safest approach is to check the requirement for your particular application at the time of filing, because it turns on those features rather than on the merits of the case.
When the order takes effect
A divorce order takes effect at the end of one month from the making of the order, or from the making of an order under section 55A, whichever is later (section 55). The court may extend or, in limited circumstances, reduce that period. Only once the order has taken effect is the marriage dissolved and either party free to remarry.
The 12-month limitation period
Once a divorce order has taken effect, applications for property settlement and spousal maintenance must generally be instituted within 12 months of that date. After that, they may be brought only with the leave of the court or with the consent of both parties (section 44(3)). The court may grant leave, but leave is not a formality and requires evidence.
This is the single most common trap in an otherwise straightforward divorce: the marriage is dissolved, the parties move on, and the financial questions are left unresolved until the period has expired. Where financial matters are outstanding, they should be dealt with before, or promptly after, the divorce.
Effect on a Victorian will
Divorce can also affect an existing will. In Victoria the consequences of the end of a marriage for a will are governed by the Wills Act 1997 (Vic), and they differ depending on whether the will was made before or after the relevant event. Because the outcome depends on the terms of the will and its date, a will should be reviewed with a lawyer at the point of separation rather than assumed to operate as intended. Enduring appointments and superannuation beneficiary nominations warrant the same review.
Practical points
- Count the 12 months carefully, and file after 12 months and one day have passed.
- Locate the marriage certificate early; overseas certificates need a translation and the translator’s affidavit.
- If you have lived under one roof during the period, prepare the supporting evidence before filing rather than after a requisition.
- Diarise the date the divorce order takes effect, and the 12 months that then run.
- Review your will, enduring appointments and superannuation nominations.
How we can help
Holt & Macdonald prepares and files divorce applications for clients in Ringwood and Melbourne’s eastern suburbs, including joint applications, applications involving separation under one roof, overseas marriages and difficulties with service. We also advise on sequencing the divorce with property settlement and parenting arrangements so that no limitation period is missed.
