Divorce and separation

Grounds for divorce

With the Family Law Act in 1975 came the concept of the ‘no-fault divorce’. There is now only a single ground for divorce – ‘irretrievable breakdown’ of the marriage. The court is no longer concerned about the reasons behind the breakdown of the marriage – such as whether a spouse has committed adultery, or who left who and how.

What is separation?

To prove that there has been irretrievable breakdown of a marriage, a couple must be legally separated for no less than 12 months. The law does not try to define what the final separation of married people must look like, as marriage itself can take many forms. There must be evidence however that the marital relationship, in whatever individual form it took, was ‘severed’ (ended) as from a particular date. Normally this would involve some significant practical change in the way the parties live (eg one party moves out of the marital home). There is sufficient ‘severance’, however, if at least one party has formed an intention to end the marriage and that party clearly tells the other party that the marriage is over.

The process of divorce

Divorces are now rarely disputed and are relatively easy to apply for without the assistance of a lawyer. It is possible to make an online application for divorce from the Family Law Courts website.

All divorce applications will be given a hearing date. At the divorce hearing, the court will consider the jurisdiction of the court, the marriage, the period of separation and whether there are proper arrangements in place for any children of the marriage under 18 years-of-age.

When a divorce order is made it occurs in two stages. At the divorce hearing, the court makes an order called a ‘decree nisi’. This is an interim (temporary) order. The couple will not be legally divorced until one month and one day later, when the decree nisi becomes ‘absolute’. This means that the order becomes final.

Although a divorce marks the legal end of a marriage, it does not automatically settle other issues related to parenting or to the division of the parties’ property, income and debt. If these issues are disputed and cannot be resolved privately, they must be addressed to the court in a separate case. It is important to note that an application to the court for property orders may be made at any time between separation and divorce but must (ordinarily) be made within 12 months of the divorce.

Parenting and property after separation

Towards consistent, national family law

Throughout Australian history, many people have maintained that family relationships are a private matter; that ‘governments make poor parents’, and overall, that governments should simply not interfere in family and relationship issues.

In 1901, the Commonwealth government obtained powers under the newly-made Constitution to make laws about marriage, divorce and related children’s issues. Following a policy of non-interference, however, the Commonwealth refused to make any laws about family issues for many decades. Instead, the states’ complex set of marriage and divorce laws continued. These were based on old English marriage law and varied confusingly from state to state, leading one commentator in 1910 to note, with some frustration, that it was possible to be a married person by the laws of one state and a single person by the laws of another (Harrison Moore, The Constitution of the Commonwealth of Australia, 2nd edition, 1910).

By the 1950s, there were strong calls for a consistent, national approach to marriage and divorce law. In response, the Commonwealth stepped into the family law field, firstly with the Matrimonial Causes Act in 1959, regulating divorce law, and then in 1961, with the Marriage Act, a single legal code applying in all states and territories to regulate marriage and annulment.

In the years following, the Commonwealth made more laws in the family area, its intervention reaching a pivotal point in 1975 with the introduction of the Family Law Act, a huge step forward towards national integration and streamlining of Australian family law.