Divorce applications can only be made after at least 12 months’ separation. The application can be made either jointly by both parties or solely by one party to the marriage.
A divorce is different to separation and is the legal end of the marriage. The actual ground of divorce is irretrievable breakdown of marriage, established by evidence of the parties having lived separately and apart for a continuous period of 12 months immediately before the filing of the application.
The words “separately and apart” do not necessarily have to mean physically separate and apart. An application for divorce when living under the same roof can be made, however, affidavit evidence will need to be adduced to corroborate the applicant’s claim of separation and the costs of the application will therefore be greater. Further, when the parties have resumed cohabitation on one occasion of less than three months or any other period the court considers “not substantial” the previous and later periods of separation may be added in calculating the total period of separation.
A divorce application may not be filed within two years after the date of marriage, without leave of the court, unless a certificate is filed with the application stating that the parties have considered a reconciliation with the assistance of an approved family counsellor, signed by that counseller. The court may consider granting leave for the application be filed without this certificate if it considers that there are special circumstances.
A divorce order under the Family Law Act takes affect one month after it is made, or after a Section 55A declaration (whichever is the later). A certificate of Divorce issues at that time and the parties are then free to remarry.
A Section 55A declaration is a declaration from the court that it is satisfied:
- that there are no children of the marriage who have not attained 18 years of age; or
- that the only children of the marriage who have not attained that age are the children specified in the court’s order and that:
- proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
- there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangement have been made.”
Where the court is in doubt whether the arrangements are proper, it may adjourn the proceedings until a family report has been obtained as to those arrangements.
Keep in mind:
A divorce order also has an effect on financial and property applications. There is a time limit of 12 months after a divorce order has taken effect for filing applications for property and spousal maintenance, except by leave of the court or consent of the parties: s 44(3). Therefore, it is often prudent to issue divorce proceedings as soon as possible to effect the commencement of this 12 month time limit.