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Contesting a Divorce Application

A party can contest another party’s application for divorce in two situations. The first situation is where the parties have not been separated for the minimum period of 12 months and the second situation is where the court does not have jurisdiction to grant the divorce. This article outlined how a party should approach contesting a divorce application on each of these grounds.

Parties Have Not Been Separated For 12 Months

In order to obtain a divorce, the parties to a marriage must have been separated for a period of at least 12 months prior to the application for divorce being filed with the court. It is common that parties are separated whilst living under the one roof immediately following their separation. This period can be taken into account in the 12-month period.

A party can still apply for a divorce in circumstances where they resumed the relationship with the other party on one occasion after the separation, provided they separated again within a three-month period and remained separated until the filing of the application for divorce. The period the relationship was back on foot cannot be included in the 12 month period. However, the periods of separation before and after it can be included.

The court cannot make a divorce order where there is a reasonable likelihood of the parties resuming the relationship.

The Court Does Not Have Jurisdiction

The court cannot make a divorce order where it lacks jurisdiction. A court will not have jurisdiction to grant a divorce order if at the time of filing the application for divorce neither party to the marriage is:

  • an Australian citizen; or
  • domiciled in Australia; or
  • ordinarily resident in Australia and has been living in Australia for one year prior to filing the application.

If none of these grounds is met, the court does not have the jurisdiction to grant the divorce order.

Responding to a divorce application

If a party does not want a divorce granted and wants to contest the application, they must file a response to divorce which sets out the basis on which they say that the court cannot grant the divorce order. The response to divorce must be filed within 28 days (if the other party lives in Australia) or 42 days (if the other party lives overseas).

The person opposing the divorce application must attend the hearing. The date and place will be specified on the application for divorce. 

If a party wants the divorce granted but there are errors contained in the application for divorce filed by the other party, then they can file a response to divorce setting out the facts which they dispute. This may occur when names or dates of birth are listed incorrectly or when the date of separation is in dispute. The box consenting to the divorce order being made must be ticked if the responding party wants the divorce order to be made.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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