This article was written by Michelle Makela - Legal Practice Director

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...

No Fault Divorce


In Australia, the principle of no-fault divorce has applied since the introduction of the Family Law Act 1975.

Prior to the introduction of the Family Law Act in 1975, the Matrimonial Causes Act 1959 was the relevant jurisdiction for the grant of divorce. Under this Act, a decree of dissolution of marriage (divorce) would be granted if the party applying for the divorce could prove marital fault on one or more of the 14 grounds set out in the Act. These grounds included adultery, desertion, refusal to consummate the marriage, cruelty to the spouse, habitual drunkenness, and imprisonment. One of the grounds was if the parties had separated and had lived separately and apart for a continuous period of not less than five years immediately preceding the date of application, and there is no reasonable likelihood of cohabitation being resumed.

The Family Law Act 1975 abolished the requirement for parties to a marriage to prove marital fault as a basis for granting a divorce Order. The only ground required to be established now for the Court to grant a divorce Order is that the marriage has broken down irretrievably. For this requirement to be established, the parties must have lived separately and apart for no less than 12 months prior to the date of filing the divorce Application.

Parties can be separated under the one roof during the 12-month period and need not be living in separate residences. However, in the event there is a period of separation under the one roof that is to be counted towards to the 12-month period, then the party filing the Application must file an Affidavit of himself or herself, along with another Affidavit of an independent person deposing what they know about the separation.

In the event there is a resumption of the relationship after the initial date of separation, but within a three month period, the parties separated again, the period of separation before and after the resumption of the relationship can be counted towards the 12-month period of separation. However, it is important to note that the period of resumption itself cannot be counted. For example, if you and your spouse initially separated on 1 January 2017, reconciled on 1 April 2017, and thereafter separated again on 30 April 2017, the earliest date that you can file your divorce application is on 2 February 2018. This is because the period between 1 January 2017 to 31 March 2017, and from 1 May 2017 to 31 January 2018 will be considered the periods of separation amounting to 12 months.

Additionally, the following requirements must be established before the Court can make a Divorce Order:

  • That either party to the marriage is an Australian citizen, or is domiciled in Australia, or is ordinarily resident in Australia and has been so resident for one year immediately preceding the date the divorce Application is filed;
  • There is a legal marriage between the parties (usually evidenced by the marriage certificate required to be filed alongside the application);
  • Proper service of all relevant documents has been effected; and
  • Where there are children of the marriage who are under 18 years of age, appropriate arrangements have been made for their care and welfare.

In the event the divorce Application is filed less than two years from the date of your marriage, you will need to attend counselling with your spouse and file a counselling certificate with the Court.

A Divorce application can be filed jointly by both parties or can be filed solely by either party.

In the event of a joint divorce application, neither party has to attend the Divorce Hearing unless specifically requested by the Court. In the event a party files a sole divorce Application, the party filing the application must ensure that the documents filed are appropriately served on the other party. Please contact one of our solicitors in the event you require assistance serving divorce documents on your former spouse.

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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