The Law Handbook 2024

258 Section 4: Relationships, families and young people the marriage), it should be possible to establish that the couple has separated. The question of whether the marriage has broken down depends on the facts of each individual case. However, the court will consider the normal elements of consortium vitae when deciding whether or not the marriage has broken down. The normal elements of consortium vitae (the presence of which would indicate that the marriage has not broken down and the absence of any one of which would be some indication that the marriage has broken down) are: • communication between the parties and sexual intercourse; • living under the same roof; • spending time together socially and looking after and caring for each other; • public recognition of each other as spouses; • economic or financial unity or cooperation; • private acceptance of each other as spouses; • communication between the parties during any separation; • there are reasons for any separations that are consistent with the continuation of the matrimonial relationship; for example, absence due to business and work commitments, or other professional engagements, absence for reasons of health or vacation; and • the nurture and support of the children of the marriage. In cases where parties are separated, but still live under the same roof, the court will require confirming evidence of this from the parties and other witnesses. Counselling required in short marriages An application for divorce (decree of dissolution of marriage) cannot be filed within two years of the start of the marriage without the court’s permission, unless a counselling certificate is filed with the application. The certificate must state (in the prescribed form) that the people in the marriage have seen a marriage counsellor and have discussed reconciling. The certificate must be signed by the marriage counsellor. Note that instead of amarriage counsellor, couples may see another suitable person or organisation nominated by either the Principal Director of Court Counselling or by an appropriate officer of the court. Special circumstances If the court is satisfied that there are special circumstances and that the application for divorce should proceed even though the people in the marriage have not attended counselling, the court may allow the application to be filed or, if the application has already been filed, to grant a divorce. There must still be a 12-month separation before the application for divorce can be filed. What are the grounds for a decree of nullity? The grounds for a decree of nullity are that the marriage is void because: • one person is lawfully married to another person (bigamy); • the couple are in a prohibited relationship (e.g. they are brother and sister); • consent to the marriage was obtained through duress, fraud or mistake; • one person was not old enough to marry (ss 23, 23(B) Marriage Act 1961 (Cth) (‘ Marriage Act ’)); • the ceremony was phoney because certain formal requirements of the Marriage Act were not followed. How are divorce proceedings started? The following documentation is required to begin proceedings for dissolution and nullity: • an application (the application form should be prepared by either party or by a legal practitioner); • a marriage certificate (the original, or a certified copy); and • a declaration by a solicitor (or officer of the court if the applicant is unrepresented) that information from the Director of Counselling and Welfare has been given to the applicant. This information is about the legal and possible social effects of divorce. Filling out all the forms correctly and serving them on the other party can seem complicated. Do-it-yourself kits are available from FCFCOA (see ‘Contacts’ at the end of this chapter).