Principles of Divorce

General Legal Principles of Divorce Under Australian law

Divorce in Australia is regulated by the Family Law Act 1975. The statute establishes the principle of no-fault divorce. This means that it is not incumbent on the petitioning party to prove the other party’s fault in order to have the marriage ended by the court. Specifically speaking, the court does not take into consideration reasons why the marriage has ended, because the only ground for divorce under Australian law is the fact that the marriage broke down and there is no reasonable likelihood that the parties will get back together. In this connection, it needs to be pointed out that the Federal Circuit Court of Australia is empowered by Part VI of the Family Law Act 1975 to handle all matters related to the dissolution of marriage. That is, the Federal Circuit Court of Australia has the original jurisdiction to hear divorce cases. However, when the court grants divorce, it does not simultaneously rules on the matters of property distribution, financial support or arrangements for children. It merely recognises and formalises the end of the marriage.

To elaborate further, Australian law entitles an individual to apply for a divorce in the territory of Australia if (i) either the individual or his/her couple has domicile in Australia (views Australia as their home and have intent to reside in Australia permanently) or (ii) are Australian citizens by any lawful means or (iii) ordinarily reside in Australia for at least 12 months immediately preceding filing for divorce. Additionally, Australian law requires from the applicant to prove that the applicant and his/her spouse have lived separately and apart from each other for at least 12 months, and there is no reasonable likelihood of resuming married life. Here, it is extremely interesting to note that the court may recognise the fact of separation even under conditions when the couple lives separately in the same house. This is known as ‘separation under the one roof’. In case the couple has children aged under 18, the court can grant divorce only if it is satisfied that proper arrangements have been made for the children.

Although Australian law prescribes the principle of no-fault divorce, the other party is entitled to oppose a divorce application by way of completing and filing a response to divorce and make personal court appearance on the hearing date. In order to make the response efficient, the opposing party has to specify the dismissal grounds in the response to divorce. Besides, if the opposing party fails to appear on the hearing date, the court may hear and decide the divorce application in the opposing party’s absence.

Practical application of the general principles of divorce by Australian courts

To recapitulate, there are two general principles of divorce under Australian law: 1) the principle of no-fault divorce; and 2) the principle that the marriage broke down and there is no reasonable likelihood that the parties will get back together. Australian courts extended the legal dimensions of divorce under statutory law. Thus, in Anderson & McIntosh, the court decided that the term ‘divorce order’ pertains to a divorce granted under the Family Law Act and the statutory limitation in respect to property settlement proceedings has application only to parties to a divorce order.[1] In elaborating on the meaning of the term ‘divorce order’, the court acknowledged that the term at issue should be applicable only to a divorce obtained overseas by order or otherwise. The concept of divorce order is used consistently throughout the legislation – relating only to Australian divorces. Also, the court highlighted that a divorce may be alternatively obtained in a foreign country with different limitation and administration periods.

 

[1] Anderson & McIntosh [2013] FamCAFC 200 (13 Dcember 2013), 150.