Contesting a Divorce
In Australia, divorce law operates on a no-fault basis, so neither party needs to prove wrongdoing to seek a divorce. Broadly speaking, a person cannot prevent their spouse from obtaining a divorce simply because they do not wish to break up. However, there are circumstances when a spouse can contest a divorce application on the basis of procedural or jurisdictional error. It is important to seek legal advice from a family lawyer to understand whether there is any basis to prevent the granting of the divorce. This page deals with contesting a divorce application in Australia.
Mutual consent to divorce
It is quite common for people to erroneously believe that a divorce requires the consent of both people. This belief may be because, historically, a spouse could hold up the granting of a divorce in Australia. Without cooperation from both spouses, it was essential to provide proof, usually requiring the expense of a solicitor and private investigator to collect evidence to support a claim of adultery, cruelty, desertion, habitual drunkenness or insanity. Otherwise, an applicant had to wait five years to apply for a divorce. This impediment to divorce changed with the introduction of the Family Law Act 1975, which established the only grounds for divorce in this country to be the irretrievable breakdown of the marriage.
Even so, it is not uncommon for one spouse to resist the idea of divorce, because they still have hope for the relationship, or because they have strongly held beliefs that discourage divorce. However, these hopes and beliefs are not sufficient grounds for contesting a divorce application in Australia. A spouse can certainly still suggest relationship counselling in preference to divorce, but the other spouse does not have to agree.
Length of separation
The first circumstance in which it is possible to contest a divorce is when the spouses have not been separated for the required period. Under Australian law, a spouse must wait for 12 months following separation before applying to the Federal Circuit and Family Court of Australia (or Family Court of Western Australia) for a divorce. Sometimes it is difficult for a spouse to establish this period of separation, especially if the parties continued to reside at the same address during the twelve months. However, the court does make provision to recognise when a couple is separated but living under one roof. Even if one party refuses to acknowledge the date of separation, the applicant can establish the facts through affidavit and witness evidence.
Sometimes a spouse argues that the separation requirement has not been satisfied because the couple reunited for a period of time during the 12 months before the divorce. The court will not allow a divorce application when there is a reasonable likelihood that the couple will reconcile, and repeated periods of reconciliation are taken as evidence that the relationship is not irrevocably broken. However, a single reunion of less than three months can be discounted, so that one relatively brief reunion does not restart the clock on the period of separation. For instance, if a couple is separated for five months, gets back together for two months and then finally separate, then the couple will only need to serve an additional seven months before they are eligible for a divorce.
Jurisdiction
A person can also contest a divorce application on the grounds that the court does not have jurisdiction. A marriage needs to be legal according to Australian law for the court to grant a divorce. The court can grant divorce over an overseas marriage, but only when it is recognised under the Marriage Act 1961. Australian law does not recognise a marriage when:
• either party was forced into the union;
• either party did not understand that they were getting married;
• either party was too young to legally marry (except in certain situations);
• either party was already married to another person;
• the parties were close biological relations; or
• the marriage was not performed legally.
When a marriage is not legally recognised in Australia, then the court cannot grant a divorce. In that case, the only recourse is to seek an annulment to dissolve the marriage.
The court must also have jurisdiction over the applicant because one of the parties has a connection to this country. As such, the court does not have authority to grant a divorce unless at least one spouse is an Australian citizen or is ordinarily a resident in Australia and has lived in this country for at least a year.
Procedure for contesting divorce
In order to contest a divorce, the party must complete, file and serve a Response to Divorce and attend the divorce hearing. The respondent must file this document within 28 days (when the other spouse resides in Australia) or 42 days (when the other spouse lives overseas). This Response must clearly establish the reasons why the divorce should not be granted (that is, on the basis of lack of jurisdiction or an insufficient period of separation). Additionally, there are occasions when both parties are in agreement over the divorce, but the application for divorce contains errors. This may happen, for instance, when there are inaccuracies in the listed names or dates of birth. In that case, the Respondent can file a Response setting out the disputed facts but ticking the box consenting to the divorce order.
While a spouse may not be able to oppose a divorce purely on disagreement, avenues do exist to contest the process when there are jurisdictional issues or procedural errors. However, it is essential to approach such a legal challenge with a clear understanding of Australian divorce law. For any legal representation or advice, please contact the team at Go To Court Lawyers on 1300 636 846.