Some of the most common divorce reasons include:
- lack of communication or communication breakdown
- lack of commitment and incompatibility
- substance abuse, physical or emotional abuse
- financial problems or financial incompatibility, and
- domestic violence or domestic abuse.
You may have gone to couples therapy or relationship education, but it was still not a healthy marriage. Or you may be thinking that you don’t have enough reasons for divorce to file for a divorce. Or perhaps you are in a situation where you want to file for a divorce but are wondering whether you should provide sufficient divorce reasons for the court to make a divorce order?
You may be wondering if you need to provide a major reason to prove reasons such as:
- an extramarital affair,
- alcohol and drug abuse
- if your partner physically threatened you, or physical abuse
- financial problems
- marital breakdown or mental health issues,
- unrealistic expectations, or relationship issues.
Or if you need to show marital conflict by demonstrating that you have had too many arguments with your former spouse for the past two decades, and that the verbal abuse has caused marital distress leading to a marriage dissolution,
The Family Law Act 1975 governs all laws dealing with divorce. This article will discuss matters on reasons for divorce and requirements, among others.
Australia’s No-Fault Divorce System
Australia has a no-fault divorce system. This means that you do not need to provide most common reasons for divorce or grounds for you to file for a divorce. When granting a divorce, the Court does not consider reasons why the marriage ended. Neither spouse needs to prove the lapses of the other. Family members don’t have to back up claims as well.
The only ground for divorce in Australia is the irretrievable breakdown of marriage or a marital breakdown. This means that if parties face a breakdown of marriage, and if they know there is no reasonable chance of getting back together, they can get a divorce. It does not matter who was at fault or if both or at least one partner or one spouse wants a divorce.
There is also no need to prove most common reasons such as a deteriorating relationship, lost feelings, domestic violence, abusive behaviour, communication problems or poor communication. Other common reasons include:
- Mental illness and visits to a clinical psychologist,
- Religious differences
- Demographic characteristics such as cultural background
- Extramarital affairs
- Lack of physical intimacy
- Marital problems and incessant arguing
- Money disagreements and financial issues
- Spouse’s drinking, or too much conflict.
In Australia you only need to show a marriage breakdown. Most common reasons for the no fault divorce systems include the irretrievable breakdown of the marriage. Even living away from each other for extended periods of time, irreconcilable differences, and incompatibility can lead to breakdown. Some argue that this system produces more divorced couples and higher divorce rates.
Fault-based Divorce System
On the other hand, in fault-based divorces, a party will generally request for a divorce from the other party because of some fault committed by the latter party. These faults, often termed as matrimonial offences, can include various things such as substance abuse, adultery, cruel treatment, psychological abuse, health problems and infections caused by Sexually Transmitted Diseases (STDs).
In fault-based divorces, a spouse may object to the divorce and present a defence to object to the fault. The proceeding can get complicated considering the need to prove divorce reasons and grounds. In such cases, mere incompatibility or irreconcilable differences is not enough.
Since Australia has a no-fault divorce system, there is no need to prove common reasons for divorce such as your partner was unfaithful, lack of marital satisfaction, communication problems, lack of commitment, or that both of you can no longer agree with just about anything.
Can I Get Divorced?
If you have decided to separate from your spouse, even if you don’t need to prove divorce reasons, it’s important to understand divorce requirements for the proceedings.
To apply for a divorce in Australia, the following must be met:
- you must be legally married
- your marriage must have broken down irretrievably
- you must have been separated from your spouse for at least 12 months
- you or your spouse must be an Australian citizen or have been living in Australia for at least the last 12 months prior to filing
- you and your spouse must make appropriate arrangements for the care of any child of your relationship, if relevant.
A divorce application can be applied for by one party alone, or jointly. In addition, if you married overseas, you can apply for a divorce in Australia as long as you meet the requirements above.
The 12-month Separation Requirement
An application for divorce can only be made after a year of separation. This is considered long enough to prove that the couple is unlikely to get back together and that they have reached their critical turning point. The 12-month period begins the day one or both parties leave the marriage.
Separation generally means living in different homes, but it is possible to be “separated under one roof”. This usually occurs when the married couple has decided to separate but still live in one house due to financial reasons.
When this occurs, you will need to prove that you and your spouse live separate lives. You may do so by providing two affidavits to the Court, one from you and the other from a friend or family member (your children over 18 can make this affidavit), telling the Court about your separate lives.
You may explain that you sleep in separate rooms, do not eat meals together, do not spend leisure time with each other, or do recreational activities together.
What If We Tried to Get Back Together?
Perhaps you have remembered everything taught in premarital counseling or premarital education, or what premarital counseling teaches. You can get back together for up to three months without re-starting the 12-month separation period. However, the time you spend back together will not count as part of the separation period.
For example, if you got separated for two months, get back together for one month and then separate again, the Court will consider that you have been separated for two months and not three months.
So let’s say you separated at the beginning of January 2023 and decided to try to make your marriage work again. You decide to work on communication skills, work the gender roles, address those common reasons for arguing, and be among those healthy marriages and address significant differences. Then, you try to patch things up and start living together again at the beginning of March 2023.
You try to establish positive connections between each other, provide mutual support, or attend a relationship enhancement program. But things still didn’t work out and you only lived together for 3 months until the end of May 2023.
The Court will only consider two months (January and February) as separated, and you would only have to wait for another 10 months to reach the 12-month period of separation required by law for a divorce. Furthermore, isolated acts of sexual intercourse do not break the separation period. [In the Marriage of Feltus (1977) FLC 90-212)].
What If the Marriage was Short?
For a short married life, if you and the other party were married for less than two years you cannot apply for divorce unless you:
- provide a certificate from a counsellor, stating that you have both attended marriage counselling and considered getting back together; or
- ask the Court for permission for the hearing of your application to go ahead even though you have not attended marriage counselling and considered getting back together.
The Court will only grant permission to go ahead without a certificate if you can provide evidence (through an affidavit) that there are special reasons why you have not attended counselling and considered getting back together. Special reasons may include not knowing the whereabouts of one spouse, the latter refusing to attend counselling, or if it is not appropriate to do so due to family violence or family violence orders.
What About the Children?
If there are children of the marriage, Section 55A of the Family Law Act 1975 provides that the Court must be satisfied that “proper arrangements in all the circumstances have been made for the care, welfare and development of children” before granting a divorce.
Children of the marriage include those of young age or the age groups of those under 18 years who were living with the parties at the time of the separation. Details such as where and whom the children will live with, risk factors, child care responsibilities, raising children, how often they see or communicate with the other parent, and financial agreements for the children have to be provided for the Court to be satisfied that proper arrangements have indeed been made.
Seeking Legal Advice from Expert Family Lawyers
Getting a divorce does not require the need to prove divorce reasons. However, there are requirements that have to be complied with in order to initiate a divorce proceeding or file a divorce petition. Do you have any more enquiries on common reasons for divorce and the divorce process? A divorce lawyer can help.
JB Solicitors offers services to parties in need of legal assistance. Our team of family lawyers can explain legal matters on reasons for divorce and address your specific situation, especially if there are children involved. Divorced individuals need not worry.
Contact a family lawyer today.