The Family Law Act 1975 established a “no fault” divorce system in Australia. This means that the person making the Application for Divorce only has to show that a valid marriage has broken down and there is no likelihood of reconciliation. A separation of not less than twelve months is required and, if parties have lived separately under the one roof, independent evidence of that separation may be required.
The Application can be made by only one spouse or by both spouses jointly. The Application must be served on the Respondent if it is not jointly made. A filing fee is payable, but this may be reduced on the grounds of hardship.
If there are children of the marriage under the age of 18 years, the Court must also be satisfied that proper arrangements for those children have been made before granting the Divorce. Children include stepchildren, adopted children and foster children who were treated as members of the household during the Marriage.
A Divorce can only be opposed on the grounds that there has not been a separation of twelve months or the Court has no jurisdiction. The granting of a Divorce does not finalise financial issues or parenting matters. These require a separate agreement or an application to the Court if no agreement is reached.
Once a Divorce Order becomes final, any application for property settlement or spousal maintenance must be filed within twelve months. If spouses end a defacto relationship, they have two years from the date of a final separation to make this application. No limitation period applies to applications for parenting orders.
A Divorce will also invalidate a Will and Enduring Power of Attorney, either partially or wholly, so it is also important for persons to review their testamentary and estate planning provisions when circumstances change.