What is divorce in law? Divorce is the legal termination of a marriage between spouses. However, both ex-partners must provide proof of their 12-month separation before applying for a divorce to the Federal Circuit and Family Court of Australia (FCFCOA). According to the FCFCOA’s family law fees, an application for divorce costs $990 in 2022.
Section 48 of the Family Law Act 1975 contains points on applying for a divorce in Australia. Firstly, couples will need to prove that their relationship has broken down irretrievably. Besides the 12-month separation, couples will also need to prove that they have lived separately following their separation.
Courts will not lodge a divorce order if there is a chance of cohabitation between the couple. Read this article to know more about divorce in law.
Section 49: What is Separation in Divorce in Law?
Divorce in law includes separation. Separation occurs when two people who have been living together as a married or common-law couple decide to live apart. If you’re married, separation does not mean the end of your relationship since there are a lot of steps and procedures required to legally end a marriage. As mentioned, married couples will need to prove that they have been separated for at least 12 months.
Couples will also need to prove that they’ve stopped doing household services for each other. In some cases, some couples can prove the separation if they are still living under one roof. However, both parties to the marriage must prove that they:
- Stopped going to social gatherings as a couple/together
- Declared their separation to their friends and family
- No longer engage in sexual activity
- Are sleeping in separate bedrooms
- Refuse to render household services for each other
- Stopped wearing their wedding rings
- Have plans to move out once everything is settled
Section 50: What if Couples Resumed Cohabitation?
In some cases, separated couples will choose to get back together. According to Section 50 of the Act, the law permits cohabitation of 3 months for a separated couple. If the couple resumes cohabitation for 3-months and more and then separates again, the 12-month requirement will start again. But, if they break up again before the 3-month mark, the time of the cohabitation can be added to the 12-month separation requirement.
Section 51 and 52: Nullity of Marriage and Divorce Orders
How is the nullity of marriage defined in divorce in law? A marriage annulment is not the same as a divorce. An annulment is a legal declaration that a marriage between two people is null and void from the beginning. Simply speaking, the marriage never happened.
According to Section 51, an application for a decree of nullity of marriage under the Family Law Act must be based on the fact that the marriage is void. Section 52 provides that the court will not issue a divorce decree if an application for a decree of nullity is pending. The court must dismiss the application for a decree of nullity of the marriage before granting a divorce.
Section 53: Courts Making or Refusing a Divorce Order
According to Section 53, the family court may make or refuse an order based on facts and circumstances. This is the case even if those facts and circumstances, or some of them, occurred prior to the commencement of this Act or occurred outside Australia.
Section 55: Approving the Divorce Order
When talking about divorce in law, the divorce only starts after 1 month of the filing of the application. Courts may also make an order where they can extend the expiration date of the divorce order if there are possibilities of an appeal or a further appeal. Moreover, they may also make an order to reduce the expiration date due to special circumstances.
Now, what if an appeal is established before a divorce order has taken effect? The divorce order will take effect at the expiration of a period of 1 month from the day in which the appeal is determined or discontinued. If there is no established appeal, the divorce order will take effect on the day that it should have taken effect.
Divorce in Law: Appealing a Divorce Order
If spouses wish to appeal a divorce order, they must do so within 28 days of the order’s issuance. They must also first file a Notice of Appeal in a Regional Appeal Registry. The only legal basis for such an appeal is a determination of whether the court correctly applied the law during the divorce hearing.
Such an appeal would not result in the appeal court hearing the divorce case again.
The court will also not involve a new decision on the facts and merits of the divorce case. As a result, if the appeal court finds that the court applied the law correctly during the divorce hearing, it must dismiss the appeal. However, there will be an automatic one-month delay after the appeal is decided before the divorce order takes effect and becomes final.
Section 55A: Divorce and Children
When talking about divorce in law, it’s important to note if there are children in the marriage. In most cases, divorce cases that involve children will typically include more hearings if parents are in dispute about childcare arrangements. Courts will then urge both parents to settle these disagreements out-of-court and if not, the court will decide on childcare arrangements.
However, the courts will normally grant a divorce order if they have no children under 18. But how will a court grant a divorce order normally if there are children involved in the divorce? Couples will need to prove that they have agreed and set proper arrangements for their children in order to go through the normal phase of a divorce order.
If courts feel that the arrangements were not made in the child’s best interests, they may adjourn the divorce order proceedings. Courts will usually hire a family consultant who can help with making childcare arrangements and to gather evidence to reach a proper judgement.
How We Can Help in Divorce Proceedings?
Divorce in law is very broad and difficult to deal with alone. Hence, JB Solicitors can aid clients in tackling divorce. Are there proper care arrangements for the children? Do both couples consider resuming cohabitation? What else is there to do after a couple is granted the divorce order?
Whatever the situation, our family lawyers can aid in looking for the best possible approach for your family law needs. We can discuss in detail a parent’s obligation and duties after divorce and discuss proper care arrangements. Our mediation and arbitration services are also available should contentious matters arise during the divorce proceedings.
Contact us today for more information about divorce in law.
