FAMILY LAW Topic 4: Divorce Family Law Topic 4.

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Presentation transcript:

FAMILY LAW Topic 4: Divorce Family Law Topic 4

Divorce under the Family Law Act 1975 (Cth) "divorce " means the termination of a marriage otherwise than by the death of a party to the marriage: s 4(1) FLA - move from the fault-based divorce to no-fault divorce single ground for divorce based upon separation (12 months) Family Law Topic 4

(1) irretrievable breakdown of marriage (2) divorce proceedings Two areas to cover: (1) irretrievable breakdown of marriage (2) divorce proceedings Family Law Topic 4

(1) IRRETRIEVABLE BREAKDOWN (a) Meaning of Separation s 48(1) - only 1 ground s 48(2) - 12 months sep’n s 49(1) - unilateral act The FC stated 3 requirements (refer Pavey and Falk) i. intention ii. action iii. communication Family Law Topic 4

(b) Separation Under the One Roof Section 49(2) Significance of living under the one roof Ask - ‘what’s changed?’ ‘overt separation’ Family Law Topic 4

(c) Resumption of Cohabitation Section 48(3) - applicant must also satisfy there is no likelihood of resuming cohabitation Casual acts of sexual intercourse Section 50(1) - the ‘one-off’ period of resumption (less than 3 months) only ONE resumption must still ‘total’ 12 months Family Law Topic 4

(d) Marriages of less than two years Myth that there are different ‘rules’ for very short marriages Section 44(1B) requires a certificate from ‘counsellor’ be filed (ie that parties have considered reconciliation) Section 44(1C) possible exception Family Law Topic 4

(e) Arrangements for Children Section 55(1) & 55A(1): Where child/ren under 18 years – must have: i. proper arrangements .. have been made for their welfare; or there are circumstances: notwithstanding that the court is not satisfied that proper arrangements made OR divorce order will not take effect Family Law Topic 4

When does the divorce order take effect ? s 54 – divorce order made first (prior to 2005, ‘decree nisi’ made first) Section 55(1) one month (after divorce order made or s 55A dec before divorce order takes effect becomes final) possible to shorten … but possible to extend also note ss 56-59 Family Law Topic 4

(2) DIVORCE PROCEEDINGS Note FLR re ‘form’ & www.divorce.gov.au Four elements of proof: i. marriage (produce marriage certificate) ii. jurisdiction: s39(3) iii. prove sole ground: s48 iv. s 55A declaration (if applicable) Family Law Topic 4

Elements to prove Court has jurisdiction Existance of valid marriage –annex Marriage Certificate Sole ground ie parties separated more than 12 months and no likelihood of reconciliation Arrangements for children ( if necessary) Family Law Topic 4

Findings by Court: Marriage between parties exists Jurisdictional ground eg domicile Ground of irretrievable breakdown of marriage established. Divorce order made Section 55A of the Act applies/does not apply If s 55A applies, then relevant finding eg declaration that satisfied that proper arrangements in all circumstances have been made for the children’s welfare. Family Law Topic 4