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The introduction of no fault divorce in 1975, means that a court no longer must consider which party was at fault for the breakdown of a marriage. The only ground for divorce is that the marriage has broken down irretrievably. A court must be satisfied that there is no reasonable likelihood of the parties resuming married life.
A husband or wife may only file for divorce if the parties have lived separately for a minimum of 12 months immediately prior to the date of filing the divorce application. There is, however, a provision under the Family Law Act 1975 that provides for a husband and wife to resume living as a married couple for a period of up to 3 months after this 12 month separation period has commenced. This 3 month period allows the parties to attempt reconciliation throughout the period of separation, without repercussions as to the required 12 month period.
If, however, the parties separate for a second time, it is possible to use the time before and after living together as husband and wife (reconciliation period) to calculate the 12-month separation period. For example, the parties lived separately for the first 6 months of the 12-month separation period. They attempt reconciliation, but after 2 months they realise the marriage is irretrievable. The parties separate a second time. The parties can use the 6 month period prior to the attempted reconciliation, and will then need to be separated for an additional 6 months to satisfy the 12 month minimum separation period before applying for a divorce order. If the parties live as husband and wife for longer than 3 months during the separation period, the 12 month period must be recommenced.
It is possible for the parties to live under the same roof during all or part of the 12-month period of separation, and still be considered separated. However, supporting affidavits may be required to satisfy a court the divorce order ought to be granted.
Once the parties have lived separate lives for a total of 12 months, the court will grant a provisional divorce, which becomes absolute one month and one day later. Notably, the parties cannot remarry until the divorce decree becomes final.
If there are children aged under 18, a court will only grant a divorce if satisfied that proper arrangements have been made for their continued care.
Applications for property settlement must be filed within 12 months of the divorce becoming final, or within two years of a de facto relationship ending.
An 'Application for Divorce' is made to the Federal Magistrates Court. It should be noted that a Divorce Order does not deal with property or parenting arrangements, as these issues are dealt with under separate applications.