AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
recognised under Australian law, the marriage and/or divorce must comply with the Australian legislative provisions. By way of example, even though parties of the Jewish faith may obtain a Gett, that Gett would not constitute a divorce for the purposes of Australian law. Separation The question of when parties to a marriage sep - arated, for the purposes of the start date of the 12-month period of separation for making an application for divorce, is one of fact and of law. There is no requirement to register a separation, nor is there any process of obtaining a decree of judicial separation. Divorce in Australia is on a “no fault” basis and separation can occur notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of the parties to the mar - riage. Nullity of Marriage It is possible to make an application for a decree of nullity of marriage. The only ground is that the marriage is void. This applies in only extremely rare cases, such as where a party was mistaken as to the identity of the person they were marrying or where the consent to marriage was procured by duress. 1.2 Choice of Jurisdiction Jurisdiction to Commence Divorce Proceedings in Australia Proceedings for a divorce order under the Fam - ily Law Act may be instituted if, at the date on which the application for divorce order is filed in the court, either party to the marriage is: • an Australian citizen; • domiciled in Australia; or
• ordinarily resident in Australia and has been so resident for one year immediately preced - ing the date of filing. These grounds apply to all marriages, including same-sex marriages. Citizenship, Domicile and Residence Proof of Australian citizenship can be estab - lished either by birth of a party to the marriage in Australia (by which they have therefore obtained Australian citizenship) or by a subsequent grant of Australian citizenship to persons born over - seas. A party is taken to be domiciled in Australia if it is the country in which they have made their home and they have formed an intention to remain in Australia for an indefinite future period. A person will be taken to be ordinarily resident in Australia if they are in Australia, intend to reside in Australia permanently and, for example, are not in Australia merely for the purposes of a holi - day. Matters such as the intention or purpose of presence in Australia, family ties, business and employment connections, location of assets, and length of period in Australia are all factors that may be given weight in determining whether a party is ordinarily resident in Australia. Challenging Jurisdiction to Grant a Divorce A respondent to a divorce application can chal - lenge the Australian court’s jurisdiction to deter - mine divorce proceedings. That is, submitting that the requirement of citizenship, domicile or ordinarily resident has not been made out.
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