Ending your Marriage

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DIVORCE

A divorce is when you legally end your marriage. The divorce literally dissolves your marriage.

To apply for a divorce, obviously you need to have been married. There are a few circumstances where it is more appropriate to apply for decree of nullity, namely that the marriage is void but in those circumstances you would need to first obtain legal advice. The occasions when it may be appropriate to proceed by way of a decree of nullity are:

Either of the parties was already married at the time of your marriage;

The parties are within a "prohibited" relationship (that is a person and his ancestor (eg mother) or descendant (eg daughter) or brother or sister. It includes an adopted child, and a half-brother or sister);

It is not a valid marriage because it did not meet the requirements of Section 58 of the Marriage Act (eg there was not the necessary notice prior to the marriage, or a birth certificate had not been produced to the celebrant);
There was not a real consent by one of the parties because:

the consent was obtained by duress or fraud;

the person was mistaken as to the identity of the other party and was not aware that the ceremony was in fact a marriage; or

the person was mentally incapable of understanding the nature and effect of the marriage ceremony; or

Either of the parties was not of marriageable age (usually over 18 years of age).

For the majority of people, their marriage is valid and when they want to bring their marriage to an end, they apply for a divorce.

If you are applying to the court for a divorce, you are called the applicant. Your spouse is called the respondent. You may apply for a divorce if at the time that you file (or lodge) at the court your application, either you or your spouse are:

An Australian citizen;

Domiciled in Australia (that is that you live in Australia and intend to continue living permanently in Australia); or

Are ordinarily resident in Australia and have been so resident for one (1) year immediately preceding that date.

The application to the court for a decree (that is an order) dissolving your marriage is based on the ground that the marriage has broken down irretrievably.

Australia has a "no fault" jurisdiction and the only ground for divorce is an irretrievable breakdown of the marriage.

To establish that ground, the court must be satisfied that you and your spouse have separated and lived separately for a continuous period of at least 12 months preceding the date on which you filed your application for divorce. The court will not make an order for divorce if the court is satisfied that there is a reasonable likelihood that cohabitation will be resumed.

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