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What is an irretrievable marriage breakdown?

From 1975, the Divorce Law in Australia has stipulated only one ground for a Decree of Dissolution on Marriage – that is, that the marriage has broken down irretrievably [s48(1) Family Law Act FLA].

The sole evidence for establishing the breakdown is that the parties to the marriage have separated and continue to be separated for a continuous period of 12 months prior to the filing of the Application for Divorce [s48(2) FLA].

The jurisdiction of the courts exercising powers under the Family Law Act is enlivened if either of the parties to the marriage can establish that they are:

1)    An Australian Citizen; or
2)    Ordinarily resident in Australia; or
3)    Present in Australia

In addition to the Application for Divorce, it is necessary to file the marriage certificate with the Court.  If the marriage occurred overseas, a copy of the overseas marriage certificate will need to be evidenced before the court. If it is in a foreign language, a certified translation will be required.

The question of whether or not the parties have “separated” for 12 months is a question of fact. The onus is on the applicant to demonstrate, on the balance of probabilities, that the essential facts supporting the application have been demonstrated before the Court.  

An application for a divorce order cannot be filed within two years after the date of marriage unless a certificate is provided by a family counsellor or consultant stating that the parties of the marriage have considered reconciliation with the assistance of that person.

If there are children of the marriage under the age of 18 years, the Court will not make an order if it is satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of the children [55A(1)(b)(i) FLA]. If the Court has doubts as to the adequacies of the arrangements for the children, it may adjourn the application and order that a family consultant prepare a report regarding the arrangements relating to the children.

See also Family Law Divorce and Family Law case examples on the Family Law blogsite

Download your Free Divorce Advice ebook Parting Ways: Divorce and Separation: A Guide to Your Rights & Responsibilities

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