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Law Notes Family Law Notes

Divorce Notes

Updated Divorce Notes

Family Law Notes

Family Law

Approximately 97 pages

These notes are very comprehensive and come with a table of contents. It is important to have good notes for this subject as there are many exams. If you are doing the intensive course there is not much time to do the readings and these notes will save you stress and time!...

The following is a more accessible plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:


  • Cases mainly around the time of the FLA. The courts dealt with interpretation in the first few years and now not really much need for challenge.

  • S 48-50 of the FLA are the main provisions.



  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.

FAMILY LAW ACT 1975 - SECT 49 Expands on the meaning of separation. Parties may be held to have separated not withstanding that the habitation was brought to an end by only one party. It is not a matter of consent. Either party may initiate proceedings.

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.

FAMILY LAW ACT 1975 - SECT 50 If parties separate but then get back on one occasion less than 3 months, s 50 allows them to aggregate the months of separation before and after to make up the 12 months.

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.

  • In the Marriage of Whiteoak [1980] : FC Australia, Tonge J: they separated when he went to jail and she filed the divorce at this time (without him knowing) but then she wrote a letter. The judge believed separation occurred when she sent him a letter that they were separated. The fact that he went to jail did not make it separation under s 48. 12 months had passed by the time the judge heard the case so she was allowed the divorce. The appeal judge found that s 48(2) interpretation was wrong – it needs to be 12 months proceeding filing the application.

    • Yet she can then just file the application straight after this case and there would have been at least 15 months separation by then and so she gets her divorce anyway. Pointless appeal by husband.

  • In the Marriage of Tye (1976) : Husband went to Singapore, claiming he would send for her, but it turns out that he already decided at that point they were separated. He applied for a job that was for a single person, with single person’s accommodation. The wife only realised months later when she got a letter that they were not together. She filed 12 months after he got on the plane to Sydney and if communication was when the letter was sent, this would not be enough time to file an application. Is communication an essential legal element? Emery J allowed dissolution. It is the unilateral communication of one spouse to the other spouse that can bring a marriage to an end.

  • In the Marriage of Falk (1977) page 99 Full Court of the FL Court: Court found people did not have 12 month separation and that separation had not even started. But the full court found that they were separated and could be divorced. Need to read.

    • Pavey’s case:

      • Separation can occur only when one party has the intention to sever or not to resume the marital relationship and acts upon that intention or alternatively acts as if the martial relationship has been severed,

      • In determining separation it is necessary to examine and contrast the state of marital relationship before and after the alleged separation,

      • The constituent elements of the marriage relationship and the significance of each element will differ from couple to couple;

      • Where the parties continue to reside in the same residence this must be explained.

    • It is a requirement that intention must be communicated to the other party. But this may be direct or indirect. It cannot be a secret intention. There are a number of ways of communicating intention like a fairly dramatic event.

    • The trial judge found in evidence that they were not separated because they were still under the same roof, but she said it was for the children’s sake, and she did housework. They kept up a marriage fiction. The husband paid for the outgoings in the house.

    • But the full court found that they were separated as they lived in separate bedrooms, barely spoke, did not have a sexual relationship and had a different conclusion. The fact that he was paying housekeeping money was simply indicating that he was doing himself a favour, to prevent him having to pay more if they divorced. The wife kept up housekeeping because he was a slob and it embarrassed her. The full court said the trial judge cannot include public policy arguments and s 49(2) said there is no prohibition of remaining under the one roof. It depends on the explanation. It was only the...

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