Divorce

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How do I get a divorce?

To obtain a divorce, one or both of the parties to a marriage must file an Application for Divorce in the Family Court or Federal Magistrate's Court. The filing fee will be less if the application is filed in the Federal Magistrate’s Court.

In the application, the husband and/or the wife must be able to demonstrate that the marriage has irretrievably broken down. It is no longer relevant what the reasons are for the separation.

To satisfy the Court that the marriage has irretrievably broken down, it must be shown that the husband and wife have separated, and lived separately and apart for at least one year. It is possible to live separately and apart under the one roof, and if this is the case, evidence from a witness should be provided to the Court verifying that the parties were separated.

To grant a divorce, the Court must be satisfied that the following three elements are present:

• an intention to separate by one or both of the parties;
• action has been taken to separate by one or both of the parties; and
• communication has been made of the intention to separate to the other party, directly or indirectly.

Other important considerations are:

• The required twelve months separation need not have been continuous. If after the parties have separated they reconcile for a period of less than three months, the twelve months separation period may be calculated using the time before and after the break.
• The Court must be satisfied that there is no likelihood that the parties will reconcile.
• If the marriage has lasted for less than two years, a prescribed counselling certificate must be submitted with the application.

What is the procedure for obtaining a divorce?

After the Application for Divorce has been filed, a hearing date is allocated. The other party must be served with a copy of the application at least 28 days before the hearing. The parties need only attend the hearing if there are children of the marriage under the age of 18.

If the Court is satisfied that the grounds for divorce are established, an order called a "decree nisi for dissolution of marriage" will be granted. It is possible to rescind a decree nisi, which means that the parties do not have to go through with the divorce. The decree nisi becomes absolute after one month, finalising the divorce. Both parties are then free to remarry.

What if there are children of the marriage?

A "child of the marriage" is a child who is treated by the husband and wife as a child of their family, and includes an ex-nuptial child (a child born before the parties were married) and an adopted child of either party.

If there are children of the marriage, in order for the divorce to be finalised, proper arrangements must have been made for the welfare of the children. However the Court may make an exception in some circumstances - for example, if the party with custody of the children has left the country.

Sufficient evidence needs to be provided to the Court showing that proper arrangements have been made for the children. Therefore, on separation the parents need to work out a detailed parenting plan, which should have regard to housing, supervision, education, child support and maintenance, access to the non-custodial parent and health. These details should be described in the Affidavit of Divorce. Oral evidence will also usually be required at the hearing by the parent with whom the children reside.

It is possible to register a parenting plan with the Court, which makes it enforceable as though it were a Court order.

If the husband and wife cannot agree on arrangements for the children, an application can be made to the Court by either party for a decision to be made. There are four types of parenting orders: residence orders, contact orders, specific issues orders and child maintenance orders. The Court will make a decision based on what it considers is in the best interests of the child. This involves taking into account the child’s maturity, sex and background, the wishes of the child, the parent-child relationship, the likely effect of any changes in the child’s circumstances, contact difficulties, capacity to provide for the child and allegations of child abuse.

What will happen to the matrimonial property?

If no agreement can be reached in relation to the division of the matrimonial property, an application can be made to the Court for orders to be made. Arrangements for dividing up the property of the parties is a separate matter to that of the divorce, and can be dealt with by the Court up to one year after the divorce has been granted. If more than one year has passed, special leave must be sought.

In deciding on a fair division of the property, the Court will consider a number of factors: the direct or indirect financial and non-financial contributions made to the family and property, the contribution to the family as a home-maker or a parent, the effect of a proposed order on a party’s earning capacity and any spousal maintenance or child support payments.

In most cases, however, parties do agree on how the property is to be divided, and formalise this agreement in the form of "consent orders" which are registered with the Court.

What are the rules in relation to child support and spousal maintenance?

Parents of a child can make their own arrangements for the payment of child support. Alternatively, the parent who has custody of the child may apply for child support to the Child Support Agency if the parents separated on or after 1 October 1989 or who have a child born on or after 1 October 1989. The amount of child support is determined by a formula contained in the Child Support (Assessment) Act 1989.

In relation to spousal maintenance, if one party is unable to support him or herself adequately because of age, physical or mental incapacity for employment or he/she has the care of a child, the other party is liable to pay. The Court may make any order it sees fit, such as ordering a lump-sum payment, periodic payments or the transfer of property.

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