1. FAMILY LAW
Topic 4:
Divorce
Family Law Topic 4

2. Divorce under the Family Law Act 1975 (Cth)
"divorce " means the termination of a marriage otherwise than by the death of a party to the marriage: s 4(1)
FLA - move from the fault-based divorce to no-fault divorce
single ground for divorce based upon separation (12 months)
Family Law Topic 4

3. (1) irretrievable breakdown of marriage (2) divorce proceedings
Two areas to cover:
(1) irretrievable breakdown of marriage (2) divorce proceedings
Family Law Topic 4

4. (1) IRRETRIEVABLE BREAKDOWN
(a) Meaning of Separation
s 48(1) - only 1 ground
s 48(2) - 12 months sep’n
s 49(1) - unilateral act
The FC stated 3 requirements
(refer Pavey and Falk)
i. intention
ii. action
iii. communication
Family Law Topic 4

5. (b) Separation Under the One Roof
Section 49(2)
Significance of living under the one roof
Ask - ‘what’s changed?’
‘overt separation’
Family Law Topic 4

6. (c) Resumption of Cohabitation
Section 48(3) - applicant must also satisfy there is no likelihood of resuming cohabitation
Casual acts of sexual intercourse
Section 50(1) - the ‘one-off’ period of resumption (less than 3 months)
only ONE resumption
must still ‘total’ 12 months
Family Law Topic 4

7. (d) Marriages of less than two years
Myth that there are different ‘rules’ for very short marriages
Section 44(1B) requires a certificate from ‘counsellor’ be filed (ie that parties have considered reconciliation)
Section 44(1C) possible exception
Family Law Topic 4

8. (e) Arrangements for Children
Section 55(1) & 55A(1): Where child/ren
under 18 years – must have:
i. proper arrangements .. have been made for their welfare; or
there are circumstances: notwithstanding that the court is not satisfied that proper arrangements made
OR divorce order will not take effect
Family Law Topic 4

9. When does the divorce order take effect ?
s 54 – divorce order made first (prior to 2005, ‘decree nisi’ made first)
Section 55(1) one month (after divorce order made or s 55A dec before divorce order takes effect becomes final)
possible to shorten … but
possible to extend
also note ss 56-59
Family Law Topic 4

10. (2) DIVORCE PROCEEDINGS
Note FLR re ‘form’ &
Four elements of proof:
i. marriage (produce marriage certificate)
ii. jurisdiction: s39(3)
iii. prove sole ground: s48
iv. s 55A declaration (if applicable)
Family Law Topic 4

11. Elements to prove Court has jurisdiction
Existance of valid marriage –annex Marriage Certificate
Sole ground ie parties separated more than 12 months and no likelihood of reconciliation
Arrangements for children ( if necessary)
Family Law Topic 4

12. Findings by Court: Marriage between parties exists
Jurisdictional ground eg domicile
Ground of irretrievable breakdown of marriage established.
Divorce order made
Section 55A of the Act applies/does not apply
If s 55A applies, then relevant finding eg declaration that satisfied that proper arrangements in all circumstances have been made for the children’s welfare.
Family Law Topic 4