Background to the Divorce Process

By 5 March, 2020Divorce

Preview to our E-book – Your Complete Guide to Divorce

Over the next few weeks we will be previewing a number of chapters of our E-book, Your Complete Guide to Divorce. At Your Divorce we are proud to put together this resource to assist the approximately 49,000 people who legally end their marriage each year. As our first instalment, we present Chapter 1 BACKGROUND TO THE DIVORCE PROCESS.

Chapter 1 – Background to the Divorce Process

In Australia there are approximately 120,000.00 Marriages per year. Unfortunately, a number of these marriages do not last forever. This has led to the process of divorce being formalised as a legal process. There are approximately 49,000 granted in Australia each year.

You may be aware that there is a concept of having your marriage annulled. This word means that the marriage in essence, never existed or is cancelled. The concept of annulment is very old but in Australia is very rarely undertaken. There are only a few grounds for annulment of a marriage in Australia and these include fraud (i.e. the person you have agreed to marrying is not one in the same person legally as the person they represent), or the parties were never able to be legally married (i.e. they were too close as relatives or one party was too young or of not sound mind).  For these reasons, annulment in Australia is very rare. However, in other countries such as the Philippines where it is a cultural issue, a formal divorce is culturally unacceptable, the concept of annulment or cancelling of the marriage still exists and thrives.

How is Divorce in Australia regulated

Divorce in Australia is regulated by the Family Law Act which was introduced in 1974. Prior to 1974 the ability to obtain a divorce was much more difficult as an application for divorce needed to include, amongst other things, grounds for the divorce (such as infidelity or neglect). Sworn Affidavit material needed to be supplied with the divorce application providing details of these issues.  You can imagine that this was quite messy at times. Accordingly, after a lengthy review, the Australian Government agreed to simplify the concept of divorce and adopted a “no fault” system. This made it a much simpler process although the Act continues to require matters such as bringing the divorce application to the attention of your spouse and advising the Court of care arrangements for children under 18, part of the process. There is however, no need to give reasons for the wanting of a divorce apart from separation for a period of 12 months or longer.

There is one curiosity regarding the 1974 amendments. This is that Western Australia decided not to participate and until this day, retains its own Legislation and Western Australia Family Court. However, for the purpose of divorce our friends at Western Australia have adopted the same procedures and paperwork to enable the divorce to be processed. Accordingly, so far as it applies to divorce, the system of divorce is identical throughout the Commonwealth States and Territories.

Next Time

In our next instalment we will be talking about eligibility for divorce. If you have any queries in the meantime, of course do not hesitate to email us at help@your-divorce.com.au or have a look at our extensive resources at our website www.your-divorce.com.au.