#8551 - Divorce - Family Law

FL 3 Divorce 1

Provisions 2

Summary of provisions 5

1. Grounds for divorce: 5

2. Establishing the sole ground for divorce in s 48(2), the meaning of separation defined in s 49 5

4 steps (1) intention acted upon? (2) examine before and after of relationship (3) note that every marital relationship is different (4) if continue living together this must be explained. 6

(1) intention acted upon? 6

(2) examine before and after? 7

(3) Significance of each element can vary from couple to couple 7

(4) if residing together must explain this 8

Remember the cases: 9

Falk’s case 9

In Price v Underwood – 2008 case on page 100. 9

McLeod’s case. 10

Feltus’ case – hoodwinked into sex 10

Contrast Feltus with Thompson 10

Resumption of Cohabitation? (Keyssner) 11

Additional requirements? 12

Shorter marriage under 2 years: need a certificate under s 44(1B) or leave under s 44(1C) 12

Marriage with children under 18: s 55A(1) and Warne 12

Divorce orders 13

48 Divorce

(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

(2) Subject to subsection(3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

49 Meaning of separation

(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

50 Effect of resumption of cohabitation

(1) For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.

(2) For the purposes of subsection(1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.

55 When divorce order takes effect

(1) Subject to this section, a divorce order made under this Act takes effect by force of this section:

(a) at the expiration of a period of 1 month from the making of the order; or

(b) from the making of an order under section55A;

whichever is the later.

(2) If a divorce order has been made in any proceedings, the court of first instance (whether or not it made the order), or a court in which an appeal has been instituted, may, either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this subsection:

(a) make an order extending the period at the expiration of which the divorce order will take effect, having regard to the possibility of an appeal or further appeal; or

(b) make an order reducing the period at the expiration of which the divorce order will take effect if it is satisfied that there are special circumstances that justify its so doing.

(3) If an appeal is instituted (whether or not it is the first appeal) before a divorce order has taken effect, then, notwithstanding any order in force under subsection(2) at the time of the institution of the appeal but subject to any such order made after the institution of the appeal, the divorce order, unless reversed or rescinded, takes effect by force of this section:

(a) at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or

(b) on the day on which the divorce order would have taken effect under subsection(1) if no appeal had been instituted;

whichever is the later.

(4) A divorce order does not take effect by force of this section if either of the parties to the marriage has died.

(5) In this section:

appeal, in relation to a divorce order, means:

(a) an appeal or application for leave to appeal against, or an intervention or application for a re‑hearing relating to:

(i) the divorce order; or

(ii) an order under section55A in relation to the proceedings in which the divorce order was made; or

(b) an application under section57 or 58 for rescission of the divorce order or an appeal or application for leave to appeal arising out of such an application.

(6) For the purposes of this section, where an application for leave to appeal, or for a re‑hearing, is granted, the application shall be deemed not to have been determined or discontinued so long as:

(a) the leave granted remains capable of being exercised; or

(b) an appeal or re‑hearing instituted in pursuance of the leave is pending.

55A Divorce order where children

(1) A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:

(a) that there are no children of the marriage who have not attained 18 years of age; or

(b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:

(i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or

(ii) there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.

(2) Where, in proceedings for a divorce order in relation to a marriage, the court doubts whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a family consultant regarding those arrangements.

(3) For the purposes of this section, a child (including an ex‑nuptial child of either the husband or the wife, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by the husband and wife as a child of their family at the relevant time.

(4) For the purposes of subsection(3), the relevant time is the time immediately before the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings in which the divorce order was made.

• Sole ground for divorce: sole ground of divorce is that marriage has broken down irretrievably (s 48(1), and this ground is established where the court is satisfied that the parties have separated and thereafter lived separately and apart for not less than 12 months up to the time of filing the application for divorce: s 48(2) FLA

• Exception: Divorce order shall not be made if court is satisfied that there is a reasonable likelihood of cohabitation being resumed: s 48(3) FLA

  • In Thompson – If there is a resumption after filing and before the hearing – it doesn’t cancel out 12 months of separation which is required after filing, but after filing any resumption is only relevant for purposes of s 48(3).

  • However in Feltus it was held that where a resumption of cohabitation is established as occurring after the date of an application for dissolution under the FLA, conclusive against continuity of separation and a fresh application would be required:

• When separation can be established:

  • Separation can be brought about by one spouse:: It may be possible to establish ‘separation’ in the relevant sense even though the separation was brought about by only one spouse: s 49(1)

  • Spouses can be separated even though living in same house or have services to each other: Can be held to have separated and to have lived separately and apart notwithstanding that the spouses continue to live in the same house or provide some household services to each other: s 49(2).

• In calculating 12 months of separation:

  • Where parties have separated but then resume cohabitation for more than 3 months, they have to have separated for a year again after that for the ground of divorce to be established: s 50(1)

  • Where parties separate but then resume cohabitation on one occasion for not more than 3 months prior to separating again: can aggregate months of separation before and after resumption of cohabitation as being the period required of living separately and apart – ie the requirement of 12 months’ separation: s 50

• If marriage for less than 2 years at time it is desired to file the application for divorce: two requirements:

  • Application must be accompanied by certificate that indicates that parties have considered reconciliation with counseling...