On what grounds can I apply for divorce?
The only ground for divorce is the irretrievable breakdown of the marriage.
A marriage is taken to have broken down irretrievably when you and the other party to the marriage have not been living as a married couple for at least 12 months and there is no chance of you getting back together again.
It does not matter who was at fault or whether both parties want a divorce.
From when does the 12 month period begin to run?
The twelve month period begins the day one or both parties leave the marriage.
Do I need to tell the other party that I am leaving the marriage?
You do not necessarily need to tell the other party, but you must make sure that you are leaving the marriage by your actions and at least in that way, you are clearly communicating it to them.
Your actions might involve moving out of the same bedroom or accommodation or, if you are already living in separate accommodation, ceasing regular communication and commencing another relationship.
This is particularly important where you intend to separate under one roof (see Separation under one roof). In this case, although it is still not necessary, it is probably a good idea for you to tell the other that you are leaving the marriage, so there is no confusion and the other party does not hold out hope of you getting back together.
What if we tried to get back together, but then separated again?
After you separate you can try to get back together once (for up to three months), without having to start the whole 12 month separation period again. For example, if you separate for three months then get back together for two months, you only have to separate for a further nine months before you can be considered to have been separated for at least 12 months [see Family Law Act 1972 (Cth) s 50].
Isolated acts of sexual intercourse do not break the separation period [Feltus (1977) FLC 90-212].
Are there any other requirements?
Yes, if the marriage was short and/or there are children of the marriage.
If you and the other party were married for less than two years you cannot apply for divorce unless you:
- provide a certificate from a counsellor, stating that you have both attended marriage counselling and considered getting back together; or
- ask the Court for permission for the hearing of your application to go ahead even though you have not attended marriage counselling and considered getting back together.
The Court will only give permission for your application to go ahead if you provide evidence (in an affidavit) that there are special reasons why you have not attended counselling and considered getting back together.
You may need to ask for permission if, for example, you do not know the whereabouts of the other party, the other party refuses to attend counselling, or it is not appropriate due to family violence or family violence orders.
Children of the marriage
If there are children of the marriage, the Court must be satisfied that “proper arrangements in all the circumstances have been made for the care, welfare and development of children” before granting divorce [see Family Law Act 1975 (Cth) s 55A]. Children of the marriage includes any children under the age of 18 years who were living with the parties at the time of the separation.
Details about the children must be provided to the Court, including:
- where and with whom they will live;
- how often they see or communicate with the other parent;
- their health and progress at school;
- how the children are financially supported.
The Court has been reluctant to find that proper arrangements have been made where one party is not meeting their obligation to provide financial support for the children [see Opperman and Opperman (1978) 33 FLR 248].
The Registrar may ask further questions about these arrangements at the divorce hearing and, if completely satisfied, will make a declaration that, in all the circumstances, proper arrangements for the children's care, welfare and development have been made. In special circumstances, such as where the other party or the children cannot be found, these details are not needed for the divorce.
Although the Registrar has to approve the arrangements, they do not become court orders and are not enforceable as court orders. Separate applications must be made for parenting and child support orders.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.