D is for divorce – A-Z of Family Law

The divorce process is perhaps the most fundamental mechanism in family law. Marriage confirms clear and definitive jurisdiction for many

A divorce order is also extremely relevant for a property settlement, as it will commence a limitation period after which parties must seek leave (permission) of the court to seek a property settlement (Family Law Act 1975 (Cth) (“the Act”) s 44).

A divorce is the “termination of a marriage otherwise than by the death of a party to the marriage” (s 4 of the Act).

The facts required to be proven for a divorce order to be made by the Court are as follows:

• That the parties were married
• That the marriage has broken down irretrievably
• That the parties have lived separately and apart for a continuous period of at least 12 months prior to the filing of the divorce application
• That there is no reasonable likelihood of cohabitation being resumed

as per section 48 of the Act.

Divorce orders take effect from one month and one day after the application is granted.

Notably, a divorce order can be rescinded if the parties reconcile (s 57 of the Act) or if there has been a miscarriage of justice (s 58 of the Act).

Divorce applications are rarely litigious or opposed, given the limited utility to be gained in most circumstances. However, applications can happen.

Judge Carty of the Federal Circuit and Family Court of Australia (Division 2), in the case of Moreau & Moreau (No 4) [2023] FedCFamC2F 1473, encountered a unique application by a wife to a marriage who wanted a divorce order to be rescinded (revoked).

The proceedings had a lengthy history, with the wife initially opposing the husband’s application before the Court subsequently granted it. The wife, who was self-represented, then filed a recission application, having incorrectly assumed that the order had taken effect (which it had not as one month and one day had not passed).

Throughout the proceedings, the wife made a variety of allegations which were at times characterised as ‘scandalous’, ‘offensive’, ‘false’, and ‘without any evidentiary basis’. Notwithstanding this, Judge Carty was sympathetic to the wife’s dilemma as she was clearly ‘desperate to avoid a divorce’.

The following conclusions were ultimately reached after a thorough review of the evidence:

• That the Court was unable to find that the parties have become reconciled, even in the sense of having restored “friendly relations” [36].
• That there had been no miscarriage of justice due to fraud [44] nor due to perjury [55] nor due to the suppression of evidence [65].
• the wife has not discharged the onus of proving that the divorce order made in mid‑2023 should be rescinded [73].

Judge Carty dismissed the wife’s application, meaning that the divorce order would take effect one month and one day from the date of said dismissal.

Finally, a small costs order was made against the wife due to her lack of success and the fact that the wife should have been aware of her prospects.

The outcome, whilst saddening and costly, reinforces the notion of Australia being a no-fault divorce jurisdiction wherein an application for divorce will ultimately be made provided that at least one party considers the marriage to have irretrievably broken down – irrespective of what the other party thinks.