The Law Handbook 2024

Chapter 4.1: Marriage and divorce 257 Family dispute resolution Under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), family dispute resolution ( FDR ) must occur before filing a court application. The object of this is to compel people to visit a FDR practitioner (previously called a counsellor or mediator) and make a genuine effort to resolve their dispute. A certificate is provided after the FDR process is complete. Exception for violence or abuse: The requirement to attend FDR before filing a court application does not apply where there are allegations of child abuse or family violence. (For more information, see Chapter 4.4: Family violence.) A list of agencies that provide FDR is provided at the end of this chapter (see ‘Contacts’ at the end of this chapter). Counselling for parties in disputes over children is nearly always ordered as a first step. Similarly, a conciliation conference with a registrar of the court or by a private mediator (depending on the value of the property in dispute) is normally a mandatory step in pursuing a property application. However, where parties cannot resolve their dispute, following the attempted conciliation, it will progress through the lists of the court to a final contested hearing in front of a judge. Divorce Legal terms: ‘Dissolution’ and ‘nullity’ A ‘ decree of dissolution of marriage ’ is commonly called a divorce. A ‘ decree of nullity ’ is made if the marriage is void. A marriage is void if: • one person was already married; • the people were in a prohibited relationship; • there was a mistake, duress or fraud; • a person was not old enough to marry. Who can apply for a divorce? In Australia, under the FL Act (s 39(3)), either person in a marriage can apply for a divorce, as long as one person in the marriage is: • an Australian citizen; • domiciled in Australia; or • usually a resident in Australia and has been so for one year immediately before the filing of the application for divorce. ‘Domicile’ is defined in the Domicile Act 1982 (Cth); a domicile is a person’s permanent legal residence. A married woman now has a separate domicile to that of her husband (s 6). The domicile of children who are living with one parent is defined as the domicile of the parent with whom the child has their principal home (relevant for residence and maintenance proceedings) (s 9). To be a permanent resident, the person must have an intention to live indefinitely in a country (s 10). Which court can grant a divorce? Only FCFCOA can grant a divorce (decree of dissolution of marriage) or a decree of nullity. What are the grounds for divorce? The only ground for divorce (decree of dissolution of marriage) under the FL Act (ss 48–50) is the irretrievable breakdown of the marriage. This is proven by showing that the couple has separated and have lived separately and apart for: • a continuous period of 12 months immediately before the date the divorce application was filed; or • a total period of 12 months with only one resumption of cohabitation (for no longer than three months) within that period. The court must be satisfied that: • the parties have been separated for 12 months; and • it is unlikely that cohabitation will resume. The couple may be considered to be separated even if cohabitation was brought to an end by the action or conduct of only one of the people in the marriage. The couple may be considered to be separated and considered to have lived separately and apart for 12 months, even if they have continued to live in the same residence or if either person has rendered some household service to the other. If the spouses have established ‘separate households’ under the same roof and the court is satisfied that there has been a destruction of the consortium vitae (the life blood of