Transcript Chapter 6 – Dissolution of Marriage

CHAPTER 6 – DISSOLUTION OF MARRIAGE
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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.
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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’
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Faults included
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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)
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Read the hotel bill cases page 73 Questions 1-5
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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.
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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:
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The period of reconciliation does not exceed 3 months
 There is not more than one period of attempt to
reconcile.
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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
Continuous 12 month separation
28 March
2011 Separation
29 March 2012
– Person/s can
apply for
divorce
3 months
28 March
2011 Separation
2 months
28 June
2011
28 August
2011
Resumption
of Cohabitation
9 months
29 May
2012 –
Person/s
can apply
for divorce
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.
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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)
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FAMILY LAW COURT
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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.
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REVIEW QUESTIONS
Page 78
Questions 4-14