CHAPTER 6 – DISSOLUTION OF MARRIAGE

Annulments vs divorce An annulment is a declaration that a marriage

never existed (declaration that the marriage was invalid)

Eg. Entered under duress, fraud, not a man and woman, mistake, prohibited relationship etc

A Catholic Church annulment is not the same as a legal annulment. It says that the marriage was not valid in the eyes of the Church. So you can be legally divorced but have a Church Annulment.

Divorce dissolves a marriage that was valid. The marriage will always be recognised as having taken place.

Divorces have not always been easy to obtain.

Prior to 1857, a divorce was only obtained by a special Act of Parliament for each case. It was extremely expensive and therefore only available to the wealthy.

From 1857, our system was based on England’s Matrimonial Causes Act 1857 (UK) and then the federal parliament passed Australia’s Matrimonial Causes Act 1959 which followed England's procedures and regulations.

It was called the ‘fault based system’

Faults included Adultery by either party Desertion by either party for not less than 2

years Wilful persistent refusal to consummate the

marriage Habitual cruelty by either party Rape of one of the parties to the marriage by

either party One of the parties being a habitual drunkard for

not less than two years One of the parties being imprisoned for not less

than 3 years after conviction and still being in prison at the date of application for divorce.

One of the parties being of unsound mind and unlikely to recover and within 6 years immediately preceding the date of application for divorce, having been confined for not less than 5 years in a mental institution

The parties have live separately and apart for a continuous period of not less than 5 years immediately preceding the date of application for divorce and there being no reasonable likelihood of cohabitation. (this was not in the original Act from England)

Read the hotel bill cases page 73 Questions 1-5

1975 the Commonwealth passes the Family Law Act (1975) Cth which changed the system of divorce from fault based to a no fault system. This was a revolutionary piece of legislation for its time.

There is now only one ground for divorce, ‘irretrievable breakdown of the marriage’.

There only needs to be a one year separation before parties can obtain a divorce. They must be living separately and apart during this period.

There has to be no likelihood of cohabitation being resumed.

This caused a large increase in the divorce rate in the few years proceeding 1975.

Look at other jurisdictions in the Practical Application on page 74

The Dissolution and Nullity of marriage is covered in section 48 and 49 of the FLA.

Living separately and apart does not necessarily mean that they must be in separate houses.

They need to use evidence to prove the 12 mth separation. Eg rental statement, diary entries, moving van bill or if in the same house it could be separate food bills, different rooms etc

It is easier to prove if living in different places.

The courts would prefer to encourage reconciliation so in section 50 of the FLA it allows a period time for parties to attempt reconciliation without having to start their 12 mths again if the reconciliation is not successful.

The rules are: The period of reconciliation does not exceed 3

months There is not more than one period of attempt to

reconcile. In Australia you are still classed as marriage

during this separation time before the divorce is granted and therefore cannot marry someone else during this time.

12 MONTH SEPARATION

28 March 2011 - Separation

29 March 2012 – Person/s can apply for divorce

28 March 2011 - Separation

28 June 2011

3 months

2 months

28 August 2011

29 May 2012 – Person/s can apply for divorce

9 months

Resumption of Co-habitation

Continuous 12 month separation

Within the issue of ‘no likelihood of cohabitation being resumed’ it does not mean that both parties must agree to the divorce.

If the marriage is less than two years old at the time of divorce application, the court requires them to participate in counselling.

One day after the 12 months separation time line has elapsed, either party can apply for the divorce to the Federal Magistrates court either individually or as a joint application.

If there are children to the marriage the court must be satisfied that the proper arrangements have been made for the care welfare and development of the children before granting a divorce. (this will be dealt with in more detail later this term)

FAMILY LAW COURT

When the Constitution was created in 1901, there was very few divorces and therefore a separate court to handle this issue was unnecessary.

When the Commonwealth passed the FLA, and the rate of divorces increased, the Family Law Court became necessary because: There was a need for specialised and sensitive staff to

deal with the new laws Staff needed skills in negotiation and to deal with

emotional people. Staff needed skills in keeping an informal court

environment that reduced stress and kept the issues private. Therefore the courts would be ‘closed’.

New rules for dealing with children and property.

REVIEW QUESTIONS

Page 78

Questions 4-14