There is one ground for divorce in Australia – that is irretrievable breakdown of marriage evidenced by separation for 12 months. By far the majority of divorce applications in Australia are dealt with on an undefended basis, but every so often an application for divorce will be contested.
The grounds for contesting a divorce application are pretty slim. The cases have held that as well as physical separation, there must be some communication from one party to the other that they are ending the marriage. The 12 month time period does not begin to run until there has been such a communication.
The courts require some communication of an intention to end the marriage because there are some people who are required to live apart – such as where one party is a member of the Australian Defence Force and is posted to a remote or overseas location. If one of those parties decides to end the marriage while the parties are apart for other reasons, the court has consistently held that there needs to be some communication about a change in their marital status before the period of separation starts to run.
As a result of that principle, a divorce that is being contested is often contested on the grounds that there was no communication that the parties were separating, even though there may have been physical separation, so that the 12 months’ time period didn’t begin to run and so there hasn’t been 12 months’ separation before the application for divorce was filed.
Section 50 of the Family Law Act provides that parties may resume cohabitation after they separate, for a period of up to 3 months. If they then again separate, they can add the period of separation before the resumption of cohabitation to the period of separation after the second separation and once those two periods add up to 12 months, one party can apply for divorce.
So, another ground for contesting an application for divorce is for the opposing party to assert that the parties resumed cohabitation for more than 3 months after they first separated.
Section 49(2) of the Family Law Act provides that parties can be separated even though they continue to reside under the one roof. It is not unusual for divorce applications to be contested where the applicant is relying on a period of separation where the parties were living under the one roof. In those cases, what the court will look for is that the parties occupied separate bedrooms and other factors such as the cessation of a sexual relationship, the cessation of services by one party to the other, such as shopping, cooking meals, washing clothes, house-cleaning and the like, plus factors such as no longer going out together, not sharing meal times, not sharing leisure time together. If a party is relying on a period of separation under the one roof, the court will require the filing of an affidavit by a separate witness to say they had visited the home during that period and they were able to see that the parties were living separate lives.
Section 48(3) of the Family Law Act provides that a divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. It is hard to imagine how one party could satisfy the court that there was such a likelihood if the other party has waited the 12 months and then applied for divorce – in fact I have not even seen a divorce being defended on such a basis in over 42 years of practice.
Section 55A of the Family Law Act provides that where there are children of the marriage under the age of 18 years, then the court must either make a declaration that it is satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of those children, or it must find that there are circumstances by reason of which the divorce order should take effect notwithstanding that it is not so satisfied.
The main two areas that the court looks at when there is an application for divorce with children under 18 involved is the tie that the children spend with the non-resident parent and the payment of child support. A father who applies for divorce, but who is not paying child support will find it difficult to have the primary declaration made, as will a mother who applies for divorce where the children live with her but are spending no time with the father.
It is not unusual for the alternate declaration to be made when one party applies for divorce at the same time as there are proceedings before the court for parenting arrangements in relation to the children of the marriage or relationship.
Written by
Stephen Rugendyke
Special Counsel
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