Breakdown of Marriage

The Family Law Act 1975 (Cth) deals with divorce and other disputes arising from the breakdown of marriage or a de facto relationship. This includes property, residence of and contact with children of the marriage or relationship, and spousal maintenance. A man and a woman who have lived together in a de facto relationship, can have property and financial disputes resolved in the Federal Circuit Court (FCC), as well as disputes involving children, that is, residence and contact, and any specific issues which relate to the welfare of children.

‘Cross vesting’ laws, which enable matters under federal law to be dealt with by state courts and vice versa, may allow property matters to be dealt with in the Family Court of Australia (FCA) if other matters are in dispute. If the only dispute is in regard to property then this must be resolved in the state courts.

The policy of the Family Law Act is to assist parties to separate with as little antagonism as possible, and to encourage them to reach their own agreements about their children, finances and property. At each Family Court and FCC Registry there is a counselling service. Counsellors can give advice and assistance to parties contemplating separation, and those who are finding it difficult to cope with separation. Counsellors can also help parties resolve differences over residence and contact.

The FCA and the FCC both require that before parties start a case concerning either parenting or financial issues they genuinely attempt to resolve their dispute with alternative methods than court. There are three steps to go through before parties can start a case:

1. participate in dispute resolution services, such as family counselling, negotiation, conciliation or arbitration
2. If this is unsuccessful, write to the other parties, setting out their claim and exploring options for settlement
3. Comply, as far as practicable, with the duty of disclosure – this means, providing all information that is relevant, and not concealing information from the other parties.

Non-compliance attracts serious consequences, including financial ones by way of cost penalties.

There are exceptions. These include cases involving:

• Urgency
• Allegations of child abuse or risk of abuse
• Allegations of family violence or the risk of family violence
• An intractable dispute (for example, one party refuses to participate in pre-court negotiations)
• A risk of prejudice to one party (for example, where there is a genuine concern that the other person will attempt to defeat your application if s/he acquires knowledge of the intention to start a case)

Divorce dissolves the legal bonds of marriage between the parties. It does not deal with other matters such as residence and contact with children, maintenance, child-support or the division of property. These have to be applied for separately (see later in this chapter).

The only ground for divorce is the ‘irretrievable breakdown of marriage’ (s48(1)). This is shown only where the parties have been living separately and apart for 12 months and there is no reasonable likelihood of them getting back together.

The Court will not decide if one party is more to blame than the other for the marriage breakdown. Accusations of fault, such as adultery, cruelty and desertion are generally not relevant under the Family Law Act 1975 for the purpose of divorce, but family violence may be taken into account in respect of property division and children’s residence and contact.

The law does not require separating or divorcing couples to obtain court orders about the settlement of children’s residence and contact, spousal maintenance, child support and property. In most cases couples reach their own informal arrangements, often with the help or advice of a lawyer.

Marriages of Short Duration

Couples married for less than two years cannot be divorced until they have seen a counsellor to explore the issues surrounding the breakdown of the marriage. This is not a difficult requirement to meet. Usually the parties just have to tell a counsellor that they do not think a reconciliation is possible. This requirement can be dispensed with in special circumstances, for example, if it can be shown that counselling is impractical because the parties live a long distance apart.

Arrangements for the Children

The court will not usually grant a divorce unless the parties have made suitable arrangements for all children treated by them as a child of their family who are under 18 years of age (s55A).
The application for divorce should set out details about the children including:

• where and with whom they live;
• their progress at school;
• their health;
• how often they see the parent with whom they do not live;
• how much the parent with whom they live earns; and
• the amount of child support being paid.

Although the judge has to approve them, these arrangements do not become orders of the court and are not enforceable by the court. Separate applications can be made for children’s residence and contact orders, and the Child Support Agency can assist with issues which relate to the financial support of children. In special circumstances (for example, where the other spouse or the children cannot be found), these details will not be needed for the divorce.