FL 3 Divorce

Table of Contents

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

Provisions

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...

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