Going through a divorce is a difficult process.
This process can be complicated by various factors including:
- Emotional and Financial strain
- Legal aspects of Finalizing Separation
- Parenting Arrangements
- Property Arrangements
What are the requirements when applying for a divorce?
Generally, there are only two (2) requirements:
1. Connection to Australia
One or both of the parties of the marriage must have a connection to Australia. This can be satisfied if they are an Australian citizen, an ordinary resident of Australia, or they have been a residing in Australia for 1 year prior to the date of filing for a divorce.[1]
2. More than 12 months of separation and living apart
The parties to the marriage must have been separated and lived apart for 12 months prior to applying for a divorce. In some circumstances, the parties may be separated but living under the same roof due to financial difficulties or to care for the children of the marriage.
What if you’ve been living under the same roof, but are separated?
If the parties have been living under the same roof, proof of separation may still be possible.[2] This will require parties to show:
- that they have lived separate lives;
- this type of proof may include:
- Separate sleeping arrangement
- Separation of financial arrangements
- Notification to friends and family of separation
There is also is an additional requirement when the parties have been married for less than 2 years.
What are the requirements if I have a short marriage (of less than two years)?
In addition to satisfying the two previous requirements, divorcing parties also must attend counselling and obtain a signed counselling certificate to accompany their application for divorce.[3]
The counselling certificate must state that the parties have considered the possibility of reconciliation with the assistance of a family counsellor, an individual or organization nominated as a family consultant, or a person nominated by an officer of the court.
Why is there a counselling requirement for couples with a short marriage?
The counselling requirement aims to preserve and protect the institution of marriage.
It hopes to provide a space to explore the potential for reconciliation or the improvement of the parties’ relationship to each other and their children.[4]
Ultimately, the Court wants to be satisfied prior to granting any divorce that there is no possibility of the parties reconciling their relationship.
Despite this, there are some exceptions to the counselling requirement.
What are the exceptions to the counselling requirement?
Some special circumstances may include:
- Current protection order
- History of domestic violence
- Inability to locate a party of the marriage.
Additionally, special circumstances may exist where one party refuses to attend counselling.
CASE STUDY 1 – Marriage of Nuell [5]
The wife was allowed to file an application for divorce without a counselling certificate because she had attended counselling by herself (and confirmed that she did not want to reconcile) and the husband simply did not respond to the counsellor’s request for him to attend.
A mere refusal to attend may not be sufficient to establish special circumstances.
CASE STUDY 2 – Marriage of Philippe [6]
The wife made an application for divorce citing special circumstances because the husband had a new partner and told the wife he was not prepared to consider a reconciliation. The Court did not find that any special circumstances existed (distinguishing the wife’s application from that in Nuell) because the parties had not in fact considered reconciliation.
What if special circumstances apply?
If special circumstances are present in a marriage less than 2 years, the party making the application for divorce must file an affidavit indicating why counselling has not occurred and the details of any special circumstances that may be applicable.
Have you had a short marriage and have questions?
If you or your spouse wishes to apply for a divorce, it is important that you seek legal advice prior to doing so. It is also important to find out whether any limitation periods for family law property settlements apply in relation to your circumstances.
For more information on the divorce application process in general, you can find more information here.
Footnotes
[1] See Family Law Act 1975 (Cth) s 39(3).
[2] See Family Law Act 1975 (Cth) s 49(2).
[3] Family Law Act 1975 (Cth) S 44(1B).
[4] See Family Law Act 1975 (Cth) s 43(1)(a), (d).
[5] (1976) 9 ALR 533.
[6] (177) 20 ALR 381.