Divorce and De Facto Separation in Australia
A “marriage” is “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” In light of this definition, then, there are 4 requirements for a valid marriage:
- the marriage in question is a voluntary union;
- it is between a man and a woman;
- it is monogamous; and
- it is a life-long union
In general, the legal age for marriage in Australia is 18. Minors can also get married, but they must first receive authorisation from a judge or magistrate. There are two requirements that must be met before a judge or marriage will authorise a minor to marry:
- the applicant minor is at least 16 years of age; and
- their circumstances are so exceptional that they justify granting authorisation to marry.
Some of the other requirements that must be met in order for a marriage to be valid include:
- solemnisation by, or in the presence of, an authorised celebrant;
- notifying the celebrant in writing at least 1 month, but not more than 18 months, before the date of marriage;
- the marriage must be solemnised before two adult witnesses; and
- if the marriage is authorised by a civil celebrant, the celebrant must utter the relevant words in the prescribed form.
Overseas Marriages Consummated Under Australian Law
A marriage may be consummated overseas in accordance with Australian laws. Doing so requires that the parties are married either by, or in the presence of, a defence force Chaplin, and at least one of the parties must be a member of the defence force.
Overseas Marriages Consummated Under the Law of the Relevant Jurisdiction
Overseas marriages consumated in accordance with local laws are valid in Australia, subject to certain exceptions. For instance, same-sex marriages or unions entered into overseas are not marriages for the purpose of Australian law. This is so even when the marriage in question complies with the law of the relevant jurisdiction.
Australia is somewhat unique in relation to most other jurisdictions in its treatment of divorce. Divorce applications are separate from applications for property, maintenance or parenting orders. This is why separated couples may apply for divorce orders several years after resolving their other family law issues.
Despite their apparent simplicity, divorce applications can be complicated by the following factors:
- A lack of evidence indicating that there are proper arrangements for the welfare of any children of the marriage;
- The parties have “separated under one roof”;
- The whereabouts of the respondent are unknown;
- The respondent disagrees with either the date of separation or the applicant’s allegation that the parties have separated; or
- The applicant is unable to prove that the marriage has, in fact, taken place (e.g., it may be impossible to obtain the parties’ marriage certificate).
The Meaning of “Separation”
Parties seeking to divorce must show the court that they have separated for a period of not less than 12 months from the date of filing the divorce application. For the purpose of meeting this requirement, “separation” is more than mere physical separation. That is, the parties must demonstrate that their martial relationship no longer exists. Some of the factors that assist judicial officers in determining whether a martial relationship exists include:
- living in the same household;
- sexual intercourse;
- recognition of the parties’ marital relationship by their peers;
- continuing support of any children of the relationship; and
- any other factor that may be unique to the marriage in question: In the Marriage of Todd (No 2) (1976) 25 FLR 260.
For a judicial officer to find that the parties have separated, there must be sufficient evidence of:
- an intention to separate;
- conduct which demonstrates that the party who intends to separate has acted on that intention; and
- direct or indirect communication of the intention to separate: Pavey and Pavey (1976) FLC 90-051.
Proof of separation does not require both parties to have reached an understanding that their relationship has ended. Separation may occur on account of the actions and intentions of only one of the parties to a marriage:s 49(1) of the Family Law Act. Difficulties can arise, however, when the applicant fails to communicate their intention, either through words or conduct, to the respondent.
Separation Under One Roof
It is possible to satisfy a judicial officer that the parties have separated even though they may still live in the same household. However, the Full Court in Pavey held that separation under one roof suggests: “an inherent unlikelihood that the marriage has broken down for the common residence suggests continuing cohabitation.”
Where separation under one roof is alleged, the applicant or applicants should be in a position to explain why the parties continue living in the same household. This explanation should address any changes in the relationship which reflect the irretrievable breakdown of the parties’ marital relationship. Evidence of the nature of the relationship both before and after separation should put before the court so that it may assess the degree to which the relationship has changed. The most compelling cases typically involve corroborating evidence that the parties have separated. This might include evidence of a family member or friend.
Resuming Cohabitation After a Period of Separation
Applicants must satisfy the court that there is no likelihood of the parties resuming cohabitation. The parties are, however, permitted to resume cohabitation for a 3 month period. If this occurs, then applicants may rely upon the period during which they were separated from their partner in satisfying the court that the parties were separated for 12 months. If, on the other hand, the parties resume cohabitation for a period lasting longer than 3 months, they cannot rely upon their previous period of separation.
Marriages Lasting Less Than 2 Years
Applicants looking to divorce less than 2 years into their marriage must undergo marriage counselling. Once the parties have attended counselling, they will receive a certificate singed by their marriage counsellor. This certificate must be filed along with the divorce application.
The counselling requirement may be dispensed with if an applicant is able to demonstrate special circumstances. Special circumstances may consist in:
- evidence from both applicants demonstrating a complete lack of interest in counselling (see, for example, Nuell v Nuell (1976) FLC 90-031); or
- any fact of the case under consideration that brings it outside of the norm (e.g., a lack of capacity of one of the parties to participate in counselling due to serious substance abuse or a brain injury): see Philippe v Philippe (1978) FLC 90-433.
Proper Arrangements for Children Under the Age of 18
If there are children of the marriage who are under the age of 18, a divorce order will not take effect unless:
- proper arrangements for the care of the children are in place; or
- no proper arrangements are in place, but the applicant has shown circumstances which otherwise justify making the order.
The purpose of securing proper arrangements is to ensure that the divorce under consideration is consistent the children’s best interests. Where the court cannot be satisfied that proper arrangements have been made, it may have regard to the totality of evidence in deciding whether to grant the divorce. This may occur where, for example, one of the parties is so destitute that they are incapable of providing any form of financial provision for their children. If, however, the court has reason to suspect that the there are no exceptional circumstances to justify making the order, it may adjourn the proceedings pending the preparation of a family report.
Most divorce applications are filed in the Federal Circuit Court of Australia. Either or both parties can file the application under r 25.01 of the Federal Circuit Court rules. The application must filed using the prescribed form. Most applicants, however, choose to file their application online via the Federal Circuit Court of Australia website.
An application for divorce would ordinarily be filed along with a certified copy of the parties’ marriage certificate. If the certificate is not in English, you should obtain a translation and prepare an affidavit from an accredited translator. You may also need to file a supporting affidavit from a witness, in case you are alleging that both you and your spouse were separated under one roof. There are various requirements that must be met if the affidavit is to be accepted by a court. These requirements can be found in both within the Federal Circuit Court Rules and the Evidence Act.
Personal service is required when serving a divorce application upon the respondent. The parties and not permitted to serve documents on each other. Useful information concerning the service of divorce applications can be found in the Federal Circuit Court of Australia’s Divorce Service Kit.
It should be noted that the applicant ought to serve a copy of the brochure “Marriage, Families and Separation” upon the respondent along with their divorce application.
A divorce application may be heard in the absence of either party when there are no children of the marriage who are under the age of 18. Once the application is granted, the order will take effect 1 month from day that the court grants the order. During this period, the parties may choose toreverse the order if they have reconciled. Alternatively, a divorce order can also be reversed if there is a miscarriage of justice. A miscarriage of justice may involve fraud, perjury, withholding evidence or any other circumstance. There is no appeal from a divorce order once the 1 month period has expired.
Section 104 of the Family Law Act provides for the recognition of divorces obtained overseas. However, only an Australian divorce order will be considered in determining whether a party must obtain permission from the court under s 44(3) before proceeding with a property application: Anderson v McIntosh  FamCAFC 200.
A decree of nullity is a legal remedy whereby a marriage is declared invalid. It is different from a divorce in that divorces terminate valid marriages, whereas a decree of nullity renders the so-called marriage non-existent. In other words, a decree of nullity is a form of relief from a court which makes it as though the marriage in question never happened.
To apply for a decree of nullity, the applicant must demonstrate that:
- To apply for a decree of nullity, the applicant must demonstrate that:
- at least one of the parties is either an Australian citizen, ordinarily resident in Australia or present in Australia when the application for the decree of nullity is filed; and
- the marriage is void.
A marriage is void on any of the following grounds:
- the marriage did not comply with the formalities of the Marriage Act;
- at least one of the parties to the marriage lacked the capacity to marry; or
- at least one of the parties did not consent to the marriage.
Failure to Comply With Formalities
The relevant formalities are discussed under the heading “Marriage.” The exceptions to these formalities are set out in ss 42, 44 and 46 of the Marriage Act.
Capacity to Marry
A person may lack the capacity to marry on account of:
- being in a same-sex relationship with their partner;
- age (subject to the exception in s 12 of the Marriage Act);
- bigamy (i.e., where at least one of the parties to a marriage is already married);
- being married to an ancestor or descendant; or
- a lack of mental capacity.
Consent to Marriage
A party may not have consented to a marriage because of:
- duress (e.g., threats of violence towards the applicant or a person close to the applicant: Kreet and Sampir (2011) 44 Fam LR 405).)
- fraud; or
De Facto Relationships
The courts have not established legal requirements for the existence of a de facto relationship. This is because, historically, de facto relationships were not recognised at common law – or at least not recognised in a strict legal sense. Section 4AA of the Family Law Act defines a de facto relationship as a relationship whereby:
- the persons involved are not legally married to each other;
- the persons involved are not related by family; and
- having regard to the circumstances of their relationship, they are living together as a couple on a genuine domestic basis.
The Family Law Act, however, prescribes minimum periods for seeking statutory relief (e.g., generally two years for property orders.) Accordingly, whether a de facto relationship had existed for at least two years is occasionally the subject of litigation. Section 4AA(2) of the Family Law Act sets out a list of factors used to guide courts in deciding whether a relationship is a de facto relationship, including:
- the duration of the relationship;
- the nature and extent of the parties’ shared residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
- the care and support of children;
- the reputation and public aspects of the relationship.