This is the second in a series of articles which will provide you with a better understanding of our family law legal system. It is our desire that this article has been informative in presenting an overview of our family law legal system.
In our family law system, you ought to be aware of three types of legal proceedings: Divorce matters; Children matters; and Property and Financial Settlement matters. We will address Divorce matters in this article.
To qualify for a divorce in Australia, you would need to demonstrate the following:
- That you are legally married.
- That your marriage has broken down irretrievably.
- That there is no reasonable likelihood of cohabitation being resumed.
Are you legally married?
Whether or not you are legally married is a question which falls within the jurisdiction of your State or Territory. Unlike divorce applications which are governed by Federal law, ‘marriage’ falls within the jurisdiction of the State. In NSW, to qualify to be married, the following circumstances would need to be established:
- You must not be already married (FACT: Polygamy is a crime).
- You must be married by an authorised celebrant.
- Unless you are between 16-18 years and have obtained approval from the Court to marry, you must be 18 years old to be married.
Has your marriage broken down irretrievably
There is only one reason, or ground, you may apply for a divorce in Australia and that is, that the marriage has “broken down irretrievably”. We have what is commonly referred to as a ‘no fault’ divorce system, which means that the Court is not interested, nor does it want to know, why you seek a divorce. Yes, gone are the days you would have to prove your spouses’ infidelity or abuse.
The only thing you need to prove is that your marriage has ‘broken down irretrievably’ – now this is the only thing you need to prove.
One will prove that their marriage has “broken down irretrievably” if they are able to demonstrate that:
- The married individuals have been separated for a period of 12 months (FACT: this does not mean 12 consecutive months, and you can be separated and continue to reside under the same roof); and
- There is no reasonable likelihood for a resumption of cohabitation (i.e. it is unlikely that you will reconcile).
If, however, you have been married for less than 2 years and you seek a divorce, and save for exceptional circumstances, you will need to attend counselling before being able to apply for a divorce.
We will discuss the further requirements you will need to obtain a divorce order in part-2.