Australian family law is principally found in the federal Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as well as in other laws and the common law and laws of equity, which affect the family and the relationship between those people, including when those relationships end. Most family law is practised in the Federal Circuit and Family Court of Australia and the Family Court of Western Australia. Australia recognises marriages entered into overseas as well as divorces obtained overseas if they were effected in accordance with the laws of that country. Australian marriage and "matrimonial causes" are recognised by sections 51(xxi) and (xxii) of the Constitution of Australia, Australian Constitution and internationally by marriage law and conventions, such as the Hague Convention on Marriages (1978).
Australia's laws on divorce and other legal family matters were overhauled in 1975 with the enactment of the Family Law Act 1975, which established no-fault divorce in Australia. Since 1975, the only ground for divorce has been irretrievable breakdown of marriage, evidenced by a twelve-month separation. However, a residual "fault" element remains in relation to child custody and property settlement issues. The federal Family Law Act 1975 covers divorce, children's orders, property division, spousal maintenance and related matters.
Annulment Under the Family Law Act 1975, a decree of nullity can be made if a marriage is void.Dickey, A. (2007) Family Law (5th Ed) Annulment does not involve termination of a marriage, but rather a declaration the purported marriage is in-fact void.
What constitutes a void marriage is determined by section 23 of the Marriage Act 1961 The distinction that existed before 1975 between void and voidable marriages no longer exists. In addition, the 1975 Act also abolished the legal concept of non-consummation of marriage as a ground for annulment,Dickey, A. (2013) Family Law (6th Ed) so that a divorce application would need to be made.
A marriage is void if: one or both of the parties were already married at the time (i.e. bigamy) the parties are in a prohibited relationship (i.e. closely related such as siblings) the parties did not comply with the marriage laws in the jurisdiction where they were married (although a marriage contracted abroad is in general considered valid in Australia, in certain cases, such as when there are serious contradictions with the marriage laws of Australia, the marriage is void) one or both of the parties were under-age and did not have the necessary approvals, (minimum marriageable age is 16, but 16 and 17 years-olds need special court approval) or one or both of the parties were forced into the marriage.
An application for a decree of nullity takes precedence over an application for divorce, so that if it is found that a marriage is void, then divorce application becomes irrelevant, though other remedies may still be available.
Recent cases
Kallestad v Brodie In Kallestad v Brodie, the husband (Mr Kallestad) sought declaration that his marriage was void on the grounds that his wife (Ms Brodie) had previously been married to another person with that marriage still being live at the time Mr Kallestad was married to Ms Brodie. FamCA 158 The Family Court of Australia found the marriage was void on the grounds Ms Brodie's original marriage was still valid at the time the second marriage was made.
Bown v Jalloh
In Bown v Jalloh, the wife (Ms Bown) sought declaration that her marriage was void on the grounds that her husband (Mr Jalloh) had not disclosed his full past to her and so she had married him on grounds of mistaken identity because his name was slightly different. FamCA 785 Ms Bown had located a drivers licence issued in the county from where Mr Jalloh originated, which had his name written as 'Jalloph'. Ms Bown sought to end the marriage due to other personal matters about her husband he had not disclosed to her. However, the Family Court of Australia noted that misrepresentations that could induce consent to marriage relating to age, wealth, social status or other background were not relevant to whether or not Ms Brown consented to marry Mr Jalloh on the day she did, and so the application was dismissed.
Divorce No-fault divorce Australia has no-fault divorce with the only ground for divorce being a claim of an irretrievable breakdown of marriage, evidenced by a twelve-month separation. Sometimes the couple may still be living together in the same home and be considered separated. If that is the case for any part of the twelve months before filing the application.
A sole applicant will need to submit an affidavit containing proof of this separation. additionally an affidavit from a neutral third party.
For a joint application both parties should file an affidavit, a third party affidavit is NOT needed in this case.
If the parties have reconciled for 3 months or more, then the 12-month qualification period has to start anew.
Though the Commonwealth had the power since federation in 1901 to make laws affecting divorce and related matters such as custody and maintenance, it did not enact uniform national laws until 1961, when the Matrimonial Causes Act 1959 came into operation. The Act continued the fault-based system operating under state authority. Under the Commonwealth law a spouse had to establish one of the 14 grounds for divorce set out in the Act, including adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity. In reality, the system was very expensive and humiliating for the spouses, necessitating appointment of barristers, often private detectives, collection of evidence, obtaining witness statements, photographs and hotel receipts, etc. Failure to prove a spouse's guilt or wrongdoing would result in a judge refusing to grant a divorce. The Matrimonial Causes Act 1959 was replaced by no-fault divorce system of the Family Law Act 1975.
Divorce application Either party to a marriage may apply to the Federal Circuit and Family Court of Australia for a divorce, or both parties may apply jointly. However, an application for divorce cannot be filed before the expiration of at least two years since the marriage had been entered into. The application can be lodged online or using a hard copy form. A fee is payable. If the application is made by one spouse (called a "sole application"), the divorce documents must be served on the other spouse, at least 28 days before the court hearing if the spouse is in Australia or 42 days if overseas. The spouse can challenge the application in a "response", claiming, for example, that the timeframes set out in the Act have not been satisfied, or that the applicant is not an Australian citizen or resident, etc. The response must also be served on the applicant and filed in court. If both spouses agree to divorce a "joint application" is filed, which does not need to be served and no response can be made.
An application for divorce can be made in Australia if either spouse:
regards Australia as their home and intends to live indefinitely in Australia and is an Australian citizen or resident, or is an Australian citizen by birth or descent or is a naturalised Australian citizen (in which case a citizenship certificate will be required), or ordinarily lives in Australia and has done so for 12 months immediately before filing for divorce.
Neither spouse can remarry before the divorce becomes final, which is usually one month and one day after the divorce is granted in court. Such a marriage would constitute bigamy and would be illegal and void.
If there are children of the marriage aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. A child of the marriage includes:
any child of either spouse, including a child born before the marriage or after separation, any child adopted by the spouses or either of them, or any child who was treated as a member of the family prior to the final separation; for example, a step-child or foster child.
A copy of the marriage certificate must be provided with the application. The same rules apply if the marriage was entered into overseas, except that if the marriage certificate is not in English, an English translation must be provided, with an affidavit from the translator.
After the divorce is finalised, each party can apply to the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia for residents of that state) for a proof of divorce certificate.
De facto couples Since 1 March 2009 (1 July 2010 in South Australia), in all states or territories except Western Australia, matters arising from separations of de facto relationships, such as child custody and property rights, are also covered by the Family Law Act under powers conferred to the Commonwealth by five of the states. Davoren Associates. Retrieved on 2015-01-15. Since 2009, the definition of "de facto couple" under the federal Act has included same-sex couples and applies throughout Australia, except Western Australia. De facto relationships. A de facto couple must cohabit for a minimum of two years for the Family Law Act to apply, unless if they have a child together, have registered the relationship, or have made significant contributions to the relationship. Parties to a de facto relationship have only two years after separation in which to file for property and/or spousal maintenance in the Family Court.
Before March 2009, state and territory laws applied to de facto relationships (and continues to apply in Western Australia). The names for de facto and similar relationships in each state and territory were/are as follows:
State/territory Name Law New South Wales/Norfolk Island "Domestic relationship", encompassing "de facto relationships" and "close personal relationships" Before 1 March 2009, Property (Relationships) Act 1984. Since July 1, 2016 all NSW laws also apply to the approximately 2,000 residents on Norfolk Island, under both the Norfolk Island Legislation Amendment Act 2015 and the Territories Legislation Amendment Act 2016 - because the Norfolk Island Legislative Assembly was abolished on 1 July 2015. (Cth). (Cth). Victoria "Domestic relationship", defined to mean "de facto relationships" Before 1 March 2009, . Property Law Act 1958 Part IX has now been repealed effective 1 December 2008, now encompassed in the Relationships Act 2008. Queensland "De facto relationship" Before 1 March 2009, Property Law Act 1974 South Australia "Close personal relationship" Before 1 July 2010, Domestic Partners Property Act 1996 Western Australia "De facto relationship" Family Court Act 1997, Part 5A Tasmania "Personal relationship", encompassing "significant relationships" and "caring relationships" Before 1 March 2009, Relationships Act 2003 Australian Capital Territory "Domestic relationship" and "domestic partnership" Before 1 March 2009, Domestic Relationships Act 1994, Legislation Act 2001 s 169 Northern Territory "De facto relationship" Before 1 March 2009, De Facto Relationships Act 1991
Recognition outside Australia