Legal terms: ‘Dissolution’ and ‘nullity’
A ‘Divorce. See decree nisi; decree absolute.’ is commonly called a The legal ending of a marriage by court order. A marriage is legally divorced when a court issues a decree absolute where there has been an irretrievable breakdown of the marriage. See also decree nisi..
A ‘A court order stating that a marriage is not legally valid.’ is made if the A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship. is Having no legal effect. A void agreement has something wrong with it, so it cannot be a legally binding contract. For example, a verbal agreement to buy land would be void, because the law says those contracts have to be in writing.. A marriage is void if:
- one person was already married;
- the people were in a prohibited relationship;
- there was a mistake, Forcing someone to do something they do not want to do. An agreement signed under duress will be invalid. or An intentionally dishonest act, or lack of action, done to deceive someone and bring some advantage over those who have been deceived.;
- a person was not old enough to marry.
Who can apply for a divorce?
In Australia, under the FL A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. (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 A person’s permanent home according to the law. The home base where they belong. It is not necessarily the same as ‘residency’, which is where someone is presently living. It is particularly relevant to family law and taxation law. 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 Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property. proceedings) (s 9). To be a permanent resident, the person must have an intention to live indefinitely in a country (s 10).
Which courts can grant a divorce?
The Family An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. and the Federal Circuit Court can grant a divorce ((1) A command given by a public authority. For example, a health authority might decree that animals with a contagious disease be quarantined. (2) A court order. of dissolution of marriage). Only the Family Court can grant 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 (of a marriage) The final end or collapse of the relationship. If the marriage cannot be saved, the court will grant a divorce if the husband and wife have been separated for 12 months or more. That period of separation is accepted as evidence of the irretrievable breakdown of the marriage. 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 Living together as a couple sharing an emotional and sexual relationship. Also, where a group of people live together on a long-term basis, as members of a family do. (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 A document that sets out what a person wants to happen to their money and other property after they die. 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 Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. 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 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 Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. 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 (s 44(1B) FL Act).
Note that instead of a marriage 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 Family Court.
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 (s 44(1C)).
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);
- To agree to something being done, to approve an action or arrangement. See also informed 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 (note that the application form should be prepared by either A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. or a legal practitioner);
- a marriage certificate (the original, or a certified copy); and
- a declaration by a A legal practitioner (lawyer) who sees clients and opens files to deal with their legal matters but usually does not appear in court. See also barrister. (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 the Family Court of Australia (see ‘Contacts’ at the end of this chapter).
Service of documents
It is a requirement of the court that all proceedings issued from the court by the applicant must be formally brought to the notice of the other party to the proceedings. The court must be satisfied that any other relevant party to the proceedings has been formally ‘served’ with notice of the proceedings.
‘Service of court documents’is a legal term meaning they have been ‘officially and formally brought to the attention of the other party’. For the applicant to prove that he or she has properly effected service on the other party, it is necessary to lodge documents of proof of service with the court.
Any court is most reluctant to make any order whatsoever affecting the rights of another without that party being present in court. However, if the applicant can prove to the court that any other relevant party to the proceedings has been served with notice of the proceedings, and if that party is not present at court on the The time and place at which a court or tribunal hears the parties argue their case and makes a decision. date, the court then may proceed to hear the case and make orders in the absence of any other party.
An application for dissolution or nullity must be served on the (1) A defendant in a civil case that has been appealed to a higher court. (2) A person against whom some originating motion has been issued by an applicant. See also appellant.. This is done by serving a sealed copy of the application on the respondent either personally or by post. If serving by post, a form for acknowledging service of the application, and a stamped envelope addressed to the applicant or the applicant’s solicitor, must be delivered. A document describing the legal and possible social effects of divorce must also be delivered.
An A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent. of service is generally then completed by the person who served the documents. Anybody except the applicant can serve the documents in person. Anybody including the applicant may, however, serve them by post.
When service is personal, oral or affidavit evidence can be given to identify the signature on the acknowledgment of service. When a person refuses to sign an acknowledgment of service, evidence can be given by producing a photograph and verifying that the photograph is of the person served.
When service is by post, the respondent is requested to return a form acknowledging service and giving an address for service of future documents. In practice, personal service on respondents is preferable to attempting service by post, as there is more likelihood that service will be effected and the all-important service documents will be properly completed and available to prove service at the court hearing. Once service has been completed, the service documents may be either filed at the court prior to the hearing or handed up to the court on the day of the hearing.
Service may be dispensed with when the court thinks it is necessary or expedient to do so. This applies where the applicant has taken every reasonable step to find the respondent.
What happens at court?
1 All proceedings in the Family Court and Federal Circuit Court are heard in open court. However, the court can order specific people to not be present in court. Proceedings are fairly informal and the court tries to ensure that they are not protracted (s 97 FL Act).
The media may report family law cases, but it is an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). to identify a party to the proceedings, a A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court., or a person associated with the proceeding. There are wide definitions of anything that may identify a person (e.g. style of dress or occupation) (s 121). The penalty for this is imprisonment for up to one year.
2 Spouses can be forced to be witnesses, and they are required to disclose communications made between them during the marriage (s 100).
3 The court can forbid questions that are offensive, scandalous, insulting or humiliating unless it is satisfied that in the interests of justice the question should be answered (s 101).
4 Proof of service may be given by affidavit or oral evidence.
5 A A court order saying that a person must appear in court to give verbal evidence or provide particular documents. See also summons. (i.e. a A formal document issued by a court which says someone must appear in court on the date stated in the document. See also service; writ. to appear to give evidence and/or produce documents) may be used to compel a witness to attend court.
6 A person summonsed is required to attend the hearing unless excused by the court, and to produce whatever documents etc. as directed by the summons. The court can issue a A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate. if the person does not attend. Non-compliance may result in an order for The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. caused by the failure to comply, as well as a broad range of other penalties available to be imposed by the court. A subpoena requiring the production of documents must be served seven clear days prior to the hearing. All subpoenas must be served personally, and conduct (fare) money must be provided.
7 The scale of witness fees and allowances is tied to the Supreme Court scale in the particular state or territory.
Hearing of divorce and nullity applications
The following points are important for the court hearing:
- Parties may appear personally or can be represented by a legal practitioner.
- In undefended divorces where there are no children under 18 years, neither party has to attend court, provided the proper request has been filed.
- A decree nisi (initial decree for dissolution of marriage) will not become absolute unless the court is satisfied that proper arrangements have been made for the children, so the application should set out these details (s 55A).
- Evidence in all cases must be given by affidavit unless the court otherwise directs. In most cases no oral evidence is given.
How is an application defended?
An application is defended by the respondent filing a response. The response is a document in which the respondent gives details of any points in the application with which he or she disagrees and then gives details of the orders sought from the court.
- A response in proceedings for dissolution and nullity must be verified by affidavit. The time allowed for filing a response after the service of the application is 28 days if the respondent is served in Australia and 42 days if outside Australia.
- If the response is filed late, the proceedings shall continue as if the response had not been filed unless the applicant consents in writing to the late filing or the court otherwise directs. The written consent to the late filing may be endorsed on the document. In practice, the court will allow a respondent to be heard at any time in the interest of justice. There may, however, be a penalty by way of costs, particularly if the proceedings are required to be adjourned.