It is increasingly common for couples to separate within two
years of the date of their marriage. This can be the case even if
the couple were in a de facto relationship for many years prior to
Grounds for Divorce
The only ground for divorce in Australia is an irretrievable
breakdown of the marriage; section 48(1) of the Family Law Act 1975
(Cth). The way that couples must prove that the marriage has
irretrievably broken down is by 12 months of separation. That is,
divorce is not available to married couples unless they have been
separated for at least 12 months; section 48(2) of the Family Law
Act 1975 (Cth).
If a couple has been:
has been married for less than two years;
has been separated for at least 12 months of that period;
applies for divorce;
then the Court is more likely to form the view that there is a
reasonable chance that they will get back together. The Court will
not grant a divorce if there is a reasonable chance of
reconciliation (getting back together); section 48(3) of the Family
Law Act 1975 (Cth).
Special Evidence of Marriage Breakdown
In circumstances where the parties have been married for less
than two years, the Family Court will require some additional
evidence that the marriage has irretrievably broken down.
Before the parties file an application for divorce, they must
attend counselling with an approved family and child counsellor to
discuss the possibility of reconciliation. The counsellor will need
to complete and sign a certificate to confirm that the couple has
participated in counselling. The parties can then file an
application for divorce, and that application is supported by the
Alternatively, if the parties have already filed an application
for divorce, then they must also file an affidavit setting out the
special circumstances as to why they should be able to seek a
divorce within two years of marriage.
The Court encourages couples who are separating to seek help
before deciding that divorce is the only option. Two years is a
short marriage, even in the context of family law. The parties
should be certain that there is no chance of getting back together
before applying for a divorce. That is, divorce should be a last
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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