Divorce and Nullity in Australia – When to Seek Legal Advice
By Amanda Humphreys, Senior Associate, MST Lawyers
Applying for divorce in Australia
Applying for divorce in Australia is usually a relatively straightforward process.
Australia has a no-fault divorce regime. This means that when granting a divorce, the court does not look at why the marriage ended. The only ground for divorce is that the marriage has broken down irretrievably and there is no likelihood the parties will reconcile.
The court needs to be satisfied parties have been separated for 12 months or more and this may include a period of separation “under the one roof” (being separated while still living in the same home).
To apply for divorce in Australia, one of the parties must:
- Be an Australian citizen;
- Ordinarily live in Australia and have done so for the 12 months immediately before applying for divorce; or
- Regard Australia as his or her home and intend to live in Australia indefinitely.
Where there are children under 18 (either children of the parties or children of one of the parties living in their household), the court must be satisfied that proper arrangements have been made for the children before providing for a divorce order to take effect. This is quite separate to the making of parenting orders reflecting the children’s best interests.
If parties seeking to divorce have been married for less than two years, there is a requirement to first attend counselling and to file a counselling certificate. If this is not possible, an affidavit is required to be filed; providing an explanation as to why counselling was not being undertaken.
The making of a divorce order is quite separate from the determination of other issues arising from the breakdown of a marriage, including parenting matters and the care arrangements for children; financial support (child support and spousal maintenance); and property settlement. These matters are determined independently from divorce, in a separate court proceeding. There is, however, a limitation period that applies after the making of a divorce order, in respect of applications for property orders and spousal maintenance.
Many separating couples choose to apply for divorce without lawyers and they can find information and court forms on the Federal Circuit Court’s website guide them through the process. One spouse may apply for a divorce or both parties can apply together in a joint application. There is a filing fee and under certain circumstances, parties may be eligible for a discounted rate.
Parties do not need to attend the hearing of a divorce application if there are no children of the marriage who are under 18 or if the application is made jointly (even if there are children under 18).
Once a divorce order is made, the order will state the date from which it takes effect. This is usually one month and one day from the date the divorce is granted.
A divorce can be granted in Australia in relation to an overseas marriage, provided the Australian court has jurisdiction. A marriage certificate in a foreign language must be translated before being filed with the court. Australia will also recognise a divorce granted overseas if it was effected properly in another country.
When to seek legal advice
If you are considering making an application for divorce yourself, we recommend you first seek legal advice and consider having a lawyer review your application before you sign and file it. We also recommend you seek advice if your spouse asks you to sign a joint application for divorce.
In the instance you are served with an application for divorce and you disagree with information in the application or you have concerns about the divorce being granted, you should seek advice about filing a response to the application and attending a hearing.
If you are planning to remarry soon after a divorce is granted, you should seek legal advice before making firm plan to marry on a particular date.
We also recommend seeking legal advice to be certain about the effect of an overseas marriage or divorce.
Recent Australian cases – invalid marriages and divorces
While divorce is usually straightforward, three recent cases from 2017 show this is not always so. These cases also highlight the importance of seeking legal advice in relation to marriage and divorce.
In this case, the husband wanted to seek a divorce quickly. He found online, a website called “Divorce Fast” offering a simple process for divorce (at a fee of around USD$1,500) which was represented to be valid “everywhere in the world”. The website referred to a policy of comity amongst countries which recognise the juridical rulings of other countries.
The online service relied on a divorce granted in Mexico. Neither the husband nor his then-wife had ever lived in Mexico. Accordingly, the divorce could not be recognised in Australia pursuant to section 104 of the Family Law Act.
The husband re-married, relying on the divorce granted in Mexico.
The husband’s first wife contacted the husband quite rightly doubting the validity of the Mexican divorce. It did not appear she had been served with the Mexican divorce application or notified it was to be heard by a Mexican court.
The husband was required to apply to the Australian court for a decree of nullity of his second marriage on the basis that the Mexican divorce was invalid and he was, therefore, married to his first wife at the time of the second marriage. His application for an annulment of marriage was granted by Cronin J of the Family Court at Melbourne.
The wife, in this case, married her husband aware that he had two children but with no knowledge that he had been previously married.
She later became aware, as a result of immigration proceedings (the husband had remained in Australia illegally by overstaying a tourist visa), that the husband had previously been married overseas and had apparently not divorced. He had falsely stated on their marriage certificate that he was “never validly married”.
Following these revelations, the husband left Australia. He had not returned at the time these proceedings were heard and the wife’s application was determined in his absence.
The marriage was declared invalid by Foster J of the Family Court at Paramatta on the basis that at the time of the marriage, the husband was lawfully married to another person.
This proceeding arose from a marriage made in fraudulent circumstances, in the context of identity theft.
The applicant lived in a de facto relationship and had a child from a previous relationship. She was not married to her current partner and had not been married to the father of her child.
In 2014, she attended at the NSW Registry of Births Deaths and Marriages to obtain a single status certificate. This certificate was required to register her de facto relationship, which she intended to do to assist her sponsorship of her de facto partner for an Australian Partner Visa.
During the course of the visa application process, it became apparent that a marriage took place in 2000 between a person who matched the applicant’s identity and a man identified in the anonymised judgment as Mr Tang. The applicant deposed that she had no knowledge of the marriage, had never heard of nor met Mr Tang (her supposed husband), the purported witnesses to the marriage nor the celebrant. Further to this, she had no knowledge of the address listed on the marriage documents. She deposed to her belief that a former boyfriend sold copies of her passport and other forms of identification to obtain money to fund his gambling addiction.
After the applicant’s unsuccessful attempts to remedy these matters with the Registry of Births Deaths and Marriages and the Department of Immigration, she made an application for a decree of nullity of marriage. Her application was initially refused for filing by court staff because a divorce had been granted in respect of the marriage in 2005.
The applicant and her lawyer inspected the divorce file. She deposed that she had never seen any of the documents in the divorce file, had not signed any of the documents purported to be signed by her and had no knowledge of the information contained in the documents. She phoned the office of the lawyer who appeared at the divorce hearing and was informed their file was no longer in existence.
The applicant’s evidence was accepted by Stevenson J of the Family Court in Sydney. The court was satisfied with her attempts to locate Mr Tang and accepted her fears about Mr Tang learning of her whereabouts. Accordingly, the court dispensed with the requirement that Mr Tang be served with documents declaring that both the marriage and divorce were invalid.
MST Lawyers’ Family Law team can provide advice in relation to marriage and divorce, including overseas marriages and divorces. If you require assistance in relation to the breakdown of a relationship, please contact us by email or telephone + 61 3 8540 0200.