By Kate Taylor

16 September 2019

Since the introduction of the Family Law Act (“the Act”) in 1975, Australia has had a “no-fault” system of divorce.

The Courts are not concerned with the behaviour of either party to a marriage when determining whether to grant an order for the dissolution of marriage. There are limited circumstances where the Court can exercise discretion with regard to divorce, for example where the Court is called upon to consider an application to dispense with the requirement for the parties to have been married for at least two years before an application for divorce can be made. However, for the most part and unlike many parts of the Act, divorce does not involve the exercise of discretion by the Court.

What’s the law?

Sub-section 48(1) of the Act establishes the sole ground for divorce, being that the marriage has irretrievably broken down.

Sub-section 48(2) of the Act states that:

“… a divorce order shall be made if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months” [emphasis added]

It is undeniably clear from sub-section 48(2) that the Court does not have the power to grant a divorce unless a period of no less than 12 months has passed between the date of the parties’ separation and the date upon which the application was made. The Court is unable to concern itself with whether the actions of one or both of the parties might otherwise warrant the dissolution of the marriage. What is not clear from the face of the legislation is whether 12 months’ separation is in and of itself sufficient to establish the irretrievable breakdown of the marriage.

What does that mean for me?

An application for divorce can be made (at the earliest) one year and one day after the date of separation.

In the matter of Bozinovic & Bozinovic (1990) FLC, Justice Kay considered whether it was open to the Court to grant an order for divorce in relation to an application that had been made on the anniversary of the date of separation (it was established as a matter of fact that the parties had separated on 14 August 1988 and the wife had filed her application for divorce on 14 August 1989).

Justice Kay indicated that “whilst [he had] a great deal of sympathy for the plight of the applicant” he simply could not make an order for the dissolution of the marriage in circumstances where the application had been filed one day too early. In this case, the wife ought to have filed her application on 15 August 1989.

Parties to a marriage that has broken down should be mindful of the timeframes dictated by the Act when considering whether or not to file an Application for Divorce (whether jointly or individually). The agreed date of final separation must be at least one year and one day prior to such application being made.

 

For more information please contact Kate Taylor or a member of the Family Law Team.

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