AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
1. Divorce 1.1 Grounds, Timeline, Service and Process Grounds for Divorce Australian law recognises both marriage between parties of the opposite sex and same- sex spouses. The sole ground for a divorce order is that the marriage has broken down irretrievably. That ground is established if, and only if, the court is satisfied that the parties separated and thereaf - ter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the applica - tion for divorce order. A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. Where there are children of the marriage who have not attained 18 years of age, then a divorce order does not take effect, unless the court has declared that it is satisfied that proper arrange - ments in all the circumstances have been made for the care, welfare and development of those children or there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made. Although Australian family law recognises the existence of de facto relationships, there is no process akin to a divorce order that applies to the ending of a de facto relationship. The ques - tion of whether a de facto relationship existed, its duration and when it ended, is a question of fact and law.
Process and Timeline for Divorce The parties to a marriage can, whether sepa - rately or jointly, apply to a court for a divorce – provided there has first been a period of 12 months of separation. Separation can take place under the one roof, provided that there is independent evidence that the relationship has broken down, even though the parties remained living (separately and apart) for some or all of that period in the same house - hold. An application for divorce is filed with a court exercising jurisdiction under the Family Law Act. A divorce hearing is ordinarily held electronically (rather than in person) approximately eight to 12 weeks after the divorce application is filed. Rules for Service of Divorce Proceedings An application for divorce in Australia can be made by one party to the marriage or by the parties jointly. Where the application is filed by one party to the marriage alone, then service of the divorce application must be in accordance with court rules for service. Ordinarily, service is effected personally on the respondent, but can be via a legal representative of that person where they have instructions to accept service of those pro - ceedings. In the ordinary course, service should be effected no fewer than 28 days prior to the date of the divorce hearing – although time for service can be abridged by consent. Treatment of Religious Marriages and Divorces in Australia Marriage and divorce in Australia are governed by the Marriage Act and Family Law Act, respec - tively. Although parties are free to undertake religious marriages or religious divorces, to be
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