Under Australian law, a reason is not required to be given for an application for divorce. However, there must still be proof of the marriage's 'irretrievable breakdown' in order for a divorce to be granted by the courts. Section 48 of the Family Law Act (the FLA) dictates that the court will only make an order for divorce if the parties have shown that there has been an irretrievable breakdown of the marriage by separating from one another for at least one year (note this does not require living separately). Other elements also must be proven to show an 'irretrievable breakdown' to allow the court to grant the parties a divorce.

How to prove the end of a marital relationship?

The FLA does not explicitly state what is necessary to establish separation. However, the union's end will be demonstrated upon a change in the overall character of the relationship; this does not include examples of fighting or infidelity.

While there may be a general social presumption that a harmonious marriage revolves around a quiet coexistence founded upon monogamy, the law recognises the various forms that marriage may take. When determining the change in the overall character of the relationship, the court will look into the full circumstances surrounding the breakdown of the relationship which may include the following lines of enquiry:

  • do the parties continue to cohabitate?
  • do the parties still engage in sexual relations?
  • do the parties present themselves in public as a couple?
  • do the parties care jointly for any children?
  • do the parties still support and protect one another?

It must be noted that there is no set formula to establish the end of a marriage; rather, the courts will look towards the natural indicators from before to after, the alleged separation in adducing evidence of the breakdown of a marriage.

Must the desire for separation be mutual?

There is no requirement that both parties want a separation at law. However, it is necessary to inform the other party of the desire to put an end to the relationship. Communication of a desire to end a marriage can be done either explicitly, through words, or by actions which clearly demonstrate an inclination towards concluding the marriage.

The importance of the separation date

The date of separation is a crucial element in granting an order for divorce; under s 48 requirements under the Act, which mandates that a couple have remained separated from each other for a minimum of 12 months.

The 12 month separation period is also important because it may affect when child support and Centrelink benefits will become payable, as well as assisting the courts in calculating property settlements where relevant.

We're Here to Help

The conclusion of a marriage is never an easy thing. If you are experiencing any problems relating to your separation or divorce, please seek the assistance of a qualified legal practitioner.

O'Sullivan Davies has practitioners experienced in divorce proceedings for parties married locally or overseas and can provide advice in relation to same. More information about our services can be found at our About Us page here.