SEPARATION AND DIVORCE

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SEPARATION AND DIVORCE

Separation and divorce can be a very difficult and onerous time in both parties’ lives. Typically, the breakdown of a partnership or “separation” occurs when the relationship has been brought to an end by the action or conduct of one or both parties. Although separation is not clearly defined under legislation, the Family Law Court normally considers the effect the following three elements:

  • Either or both parties forming an intent to end the relationship;
  • Either or both parties communicating to the other that the relationship has come to an end; and
  • The parties thereafter leading separate and independent lives from the other.

 

Applications for divorce are filed in the Federal Circuit Court (Family Court). For an application for a divorce, there must be a separation between the parties of the relationship. Under the Family Law Act 1975 (Cth), a marriage has irretrievably broken down when the Court is satisfied that a couple has lived separately and apart for at least 12 months, and, the marriage has broken down to such an extent that it is unlikely that the parties would get back together. Accordingly, the parties must have been separated for a continuous period of not less than 12 months immediately preceding the date of the filing of the application, and, satisfy the Court that there is not a reasonable likelihood of cohabitation being resumed.

Although the Court must be satisfied that the parties have lived separately and apart for at least 12 months, it is not necessary that the parties move residence. Parties may continue to reside in the same residence as the other party. Physical separation is neither necessary nor a sufficient condition for separation. An application for a divorce order is based solely on the ground that the relationship has broken down irretrievably.

The concept of “separate under one roof” is not uncommon between married couples who live separately but continue residing under the one roof. The parties continuing to reside in the same household is not an impediment to filing for a divorce, provided the parties’ matrimonial relationship has been effectively severed, and, the parties have separated pursuant to the terms of the legislation. To satisfy the Court of the abovementioned requirements, the couple will need to provide witness evidence or other such proof that they no longer share the same bed, do household chores together or socialise with one another.

This evidence is commonly executed by an independent person who sets out their views on the relationship of the parties, which assist’s the Court to corroborate any statements made in the application for divorce. If all the essential qualities of a common life have gone, the parties can be said to have separated.

If the parties to a marriage re-commence the relationship after a divorce application has been filed, or the Court forms the opinion that there is a reasonable likelihood the parties will resume cohabitation, the Court will not order a divorce or make a divorce orderunder section 48(3) of the Family Law Act.The legislation permits that separated couples are able resume cohabitation for a period of up to, but not including, three months without affecting any prior period of separation for the purpose of the 12-month separation period required for a divorce. If such a resumption of a relationship occurs and the parties again separate, they can include the period of separation prior to that resumption of the relationship as being part of the 12-month separation period required.

The procedure required to withdraw the divorce application before the Court is known as a “Notice of Discontinuance”, a document used to discontinue your application, response or notice of appeal or withdraw part of your case. Importantly, if one party files a notice of discontinuance, this does not prevent the other party from continuing to seek the orders they have sought, including orders for costs. If the next court listing for your matter is not vacated even after you have lodged the Notice of discontinuance, it is in your best interest to attend that event so that no Court Orders are made in your absence.

If the parties have been married for a period of less than two years, they are required to consider a reconciliation, with the assistance of either a family or child counsellor before either party can file an application for their divorce. If there are children of the relationship who have not attained the age of 18 years, a divorce order cannot be made by the Court until the Court has been satisfied that proper arrangements have been made for the child’s welfare or that the divorce order should be made, notwithstanding that the Court is not satisfied that the proper welfare considerations have applied.

Since the implementation of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, factors such as sex and gender no longer affect Australian marriage rights, with same-sex marriage now legal amongst all states and territories. These changes altered the existing Marriage Act 1961, redefining marriage to be ‘the union of two people to the exclusion of all others, voluntarily entered into for life’.

Marriages involving couples of the same-sex are recognised with Australian divorce proceedings, regardless of whether the marriage was solemnised prior to amendments affect. A couple within this category whose foreign same-sex marriage is recognised in Australia, is unable to marry again in this jurisdiction, unless there are questions of validity of the previous marriage. However, Same-sex couples are not prevented from holding other ceremonies, such as confirmation of vows or recommitment. This also encompasses same-sex couple who marry and divorce overseas.

Same-sex couple who divorce either in Australia or overseas after 9 December 2017 are recognised within the Australian jurisdiction under the same process and circumstances as all other married couples. Divorce proceedings are governed by the principles of the Family Law Act 1975, which establish “no-fault” divorces. This means the Family Court will not consider the circumstances as to why the marriage ended, rather the reasonable likelihood the parties will not get back together.

Like any divorce proceeding in Australia, same-sex couples must have lived separately and apart for at least 12 months and one day. Importantly, it is possible for you and your spouse to be separated whilst living under the one roof but requires proof of separation during this time. If there is a child of the marriage aged under 18 years old, the Court will only grant the divorce if satisfied proper arrangements have been made to accommodate the child’s needs. However, if there are no children of the marriage aged under 18 years, there is no requirement to attend the court hearing of the divorce from either sole or joint applications.

Once a divorce application is filed with the Court, the applicant (being the party who filed the application) must deliver to the other party a notification that the marriage has ceased. This delivery may be undertaken by any person over the age of 18 years, or a professional process server who has authority to serve the other party. This process does not have to be undertaken by you personally.

The Uniform Civil Procedure Rules 1999 (Qld) requires the correct procedure to be undertaken when delivering the divorce application to the other party. If these requirements are not met, it can cause significant delays and additional procedural costs. It is common for people to use a professional process server (or person to serve the document) to avoid any procedural defects. Importantly, the application for divorce must be served to the other person directly and in person. If the other party refuses to accept the document, or does not wish to acknowledge the divorce, the server may place the document down in their presence and state:

  • The Husband or Wife is seeking a divorce;
  • These are the papers for divorce; and
  • The appropriate court will hear the divorce application on a date to be established.

Once proof of service has been established, the serve must complete a sworn affidavit stating the time, date and place of service in front of either a Justice of the Peace or a solicitor. If the other party does not refuse service, they may sign an acknowledgment that they have been served. If the application for divorce is made on behalf of both parties and there are no children under the age of 18 who are involved in the matter, there is no requirement for the parties to attend court proceedings for the divorce. If you do choose to attend, a quick hearing is held by the Court which dissolves the marriage.

Sometimes after the breakdown of a marriage, one party has difficulty in accepting this fact and may refuse to sign divorce papers. Other situations might involve a controlling ex-partner or parties who believe they will get back together. For whatever reason, if the other party is refusing to sign divorce papers, you do not need to obtain their permission or consent to file an application for divorce. Often in Hollywood movies and TV shows you see one party “refusing” to sign the divorce papers. This myth does not exist in Australia, where one party is unable to unnecessarily delay or complicate divorce proceedings.

If the parties fraudulently entered into a legal marriage, an application may be brought before the Court for a declaration of nullity. The Marriage Act 1961 (Cth) provides on what grounds a party may apply for a decree of nullity. Effectively, this is an order finding that declares the original marriage invalid on the following grounds:

1. One or both of the parties to the marriage were already married at the time;
2. One of both of the parties were under-age and did not have necessary approval; or
3. One of both of the parties were forced into the marriage under duress.
4. One party was mistaken as to the identity of who they were marrying;
5. One party was mistaken as to the nature of the ceremony; or
6. One party was mentally incapable or understanding the effect of the marriage.

The Court will not declare a marriage invalid on the grounds of:

1. Non-consummation of the marriage;
2. Never having lived together;
3. Family violence; or
4. Other incompatibility situations.

To apply for a decree of nullity, you must file an Initiating Application in addition to an affidavit which sets out the facts relied on to have the marriage annulled, and, details of the type of marriage ceremony performed.

If you were in a relationship with another person, but were not legally married, you may still fall under the definition of “de facto” relationship. This term is defined in Section 4AA of the Family Law Act 1975 (Cth). To meet this definition, the law requires that you and your former partner (regardless of sex and gender) had a relationship as a couple who were living together on a genuine domestic basis. Although an application for divorce is not necessary in situations involving de facto couples (as there is no marriage to nullify), both the Family Court and Federal Circuit Court have the power to hear financial, property and parenting issues of these relationships.

If you have been separated for more than 12 months from your former matrimonial partner, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:

1. There has not been 12 months separation as alleged in the application; or
2. The Court does not have jurisdiction to hear the matter.

If you do not wish to have the divorce order granted by the Court, you must complete and file a Response to Divorce and appear in person on the hearing date. This Response requires you to set out the grounds on which you seek to have the divorce proceeding dismissed. If you do not attend the divorce hearing, the Court may decide to permit the divorce application in your absence. If it is difficult for you to attend Court in person due to work or other circumstances (such as travelling overseas or interstate), you may ask the Court to appear by telephone.

If the divorce application has errors, you need to outline the disagreed facts in the Response to Divorce. Some common errors may be dates of birth or other significant dates of the relationship, incorrect details regarding children or circumstances of the marriage. If you wish to file a Response, this document needs to be served on the other party within 28 days of the application for divorce being served upon you, or, 42 days of the application for divorce being served upon you if you were served outside of Australia. If you have opposed the application with a Response to Divorce, you must appear in person on the hearing date.

The granting of a divorce order does not decide issues regarding property, spousal maintenance or parenting arrangements of any children. If you wish for the Court to make orders regarding these issues, you can:

1. Make arrangements known as ‘Consent Orders’ and file it with the Court; or
2. Seek Orders from the Court in cases where no agreement can be reached.

If you are planning on re-marrying in the near future, you should avoid making set plans until the divorce order has been finalised. However, you may complete and lodge a Notice of Intended Marriage with an authorised celebrant before a divorce order is finalised. This process must occur one month prior to the date the marriage is to be solemnised. You will require the authorised celebrant to sight a copy of the divorce order before the wedding can take place.

Usually, a divorce order takes affect one month and one day after the divorce is granted by the Court. Accordingly, you should not assume the divorce will be granted at the first Court hearing.

If you have been married for less than two years, you will be required to file a counselling certificate. To obtain this certificate, you will need to attend counselling sessions with your partner. If you are unable to attend counselling with your partner, you will be required to file an affidavit as to the reasons why. The two years are calculated from the date of marriage to the date of applying to the Court for divorce.

If you were married overseas, you are able to apply for a divorce in Australia provided you or your spouse:

1. Regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident; or

2. Are an Australia citizen or resident; or

3.  Are an Australian citizen by birth or descent; or

4. Are an Australian citizen by grant of an Australian citizenship; or

5. Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file an English translation of it, and, an affidavit from the translator.

As the dissolution of a marriage is typically the entrance point of many other family law issues such as division of property and assets, parenting arrangements and consent orders, please seek legal advice on your situation and how to proceed. If you require legal advice, please contact one of our accredited family law specialists on 1800 662 535 or email us at reception@jamesnoblelaw.com.au

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