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Divorce Notes

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This is an extract of our Divorce document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble 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:

Divorce

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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. FAMILY LAW ACT 1975 - SECT 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. 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. o 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.

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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. o 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. o 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. o 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. o 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 wife who wanted to preserve the house for the kids and she got legal advice that she should not have left the house to be able to go on living there. Price v Underwood (2008): Full Court: Need to form the relevant intention. They lived in separate premises. Then reconciled but never stopped being in separate residences. Then husband claimed separation for a divorce. Held that separate residences was not enough. Communication is needed. One must have formed the relevant intention and acted on that sufficientily to put into effect that intention. Separate residences may not be sufficient. Applying for AVO, changing name, moving out of house, opening a separate bank account or other acts inconsistent with marriage may lead to communication. But what if someone has disappeared, how would you communicate that you are divorced?
McLeod [1976] separate beds, no sexual relationship but still went to student teacher nights etc. This was found just to keep up appearances. Marriage not still on foot.

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In the Marriage of Feltus (1977): They got back together because he wanted to have sex. It was found not to go to the stage of re-establishing the marital relationship. This was not a resumption. No need to think about a resumption of co-habitation. o Test for resumption is in Mummery v Mummery [1942] 'resumption of cohabitation must mean resuming a state of things, that is to say setting up a matrimonial home together, and that involves a bilateral intention on the part of both spouses to do. In the Marriage of Thompson (1977): they got back together for only a short period of time. S 50 is only relevant if it is a resumption prior to putting in the application. This getting back together happened after 12 months. The court said s 50 doesn't apply in this situation. It is relevant but in the context of s 48(3) which says that the court won't give the divorce if it thinks there is a reasonable likelihood of co-habitation in the future. S 71 FLA example. Lets say they are separated. Get back together for 2 months (resumption of cohabitation). When could they get divorce? S 50(1) says salvage the months of separation before and add them to that after, but you cannot count the resumption itself to get this aggregation. So don't add the 2 months to the period. What if they are multiple resumptions?
In the Marriage of Keyssner (1976) : Several resumptions, short periods. The woman said that they are short and together they are nowhere near the 3 months but the court said they were separate resumptions. When she left she kept going back to another relationship. The judge concluded that s 50 only allows you to have one period of resumption. Once you have 2 or 3, s 50 doesn't apply and the period must begin again from the last period of resumption. BUT there are additional exceptions: short marriage or children that are under 18. o Short marriage: less than 2 years from the date marriage occurred and the filing of divorce. Thus you talk about people separating in the first year of marriage because you add on the 12 months. The extra requirement in this case is under s 44(1B) and (1C) is counselling. You need a certificate that you sought reconciliation attached to the filing. Or there must be special circumstances. o But these requirements are odd, it should apply to everyone because people in long marriages should also have the chance to seek reconciliation. People in short marriages may realise straight away they are wrong for each other. o Historically 12 months was worked out as a compromise in parliament. o Children under the age of 18: when there was a divorce there used to be firstly a decree nisi (it was a provisional order where people could complain) and then there was a decree absolute so that the divorce actually occurred. Under the FLA the period is one month between nisi and absolute but the terminology changed - court makes a court order and the divorce order coming into effect. S 55A says a divorce does not take effect unless the court is satisfied that there are no children who have not attained the age of 18 or that proper arrangements have been made for the children. o In the Marriage of Warne (1976) : Supreme Court of the NT, Muirhead J: the father has a new family and says to his old wife that he needs to know the situation with the kids. This information is put in the divorce application. These details were found to sparse and did not give a clear indication about the kids or whether he was supporting them - he had not paid child maintenance. The court was not impressed. The proceedings are adjourned and the court sends a request for a report from a welfare officer to make enquiries. (but once the divorce order takes effect Mr Warne may stop paying and if so the wife may need to take part by going to court - so s 55A is a limited type of power because court cannot make significant parenting orders).

You can apply under s 55A(1)(b)(ii) if there are special circumstances by reason which the divorce should take place even if the court is not satisfied that such arrangements have been made. Void marriages do have legal consequences because of s 71. Financial remedies will have still have an effect because marriage means a void marriage in this context. They thought not allowing these remedies would not be fair or people may not be aware of the legal situation at that time possibly. They shouldn't be denied the remedies. Consummation does not have any relevance in a void marriage but may have factual relevance. Page 6 of handout, The love Hate Reality of Murphy's Law: o Murphy, the governor general, ushered in the law of not having one party to blame for the divorce to take place. Got rid of fault based policy. Abbot wants a return to fault based divorce. o

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Ground of divorce exercises: Question (A)

* The husband goes overseas with another woman. Could this be showing an intention to separate from the wife? This may not be just a secret intention - he is putting it into effect with another woman. It is not obligatory under Tye's case that the wife know his intentions. Communication can be indirect.

* But then he decides to try and save his marriage. He is with the wife for a month. Then tells his wife and they end the relationship. But they instead decide to have a three month trial separation instead. But the husband spends 2 months with his girlfriend. There was a period of one month co-habitation and so s 50 is relevant for that month.

* Husband comes back when wife becomes ill but solely to help the children. He sleeps in separate room, cooks meals and does housework. But living there doesn't necessarily mean they have a resumption because of s 49(2) and McLeod.

* Wife gets better. Girlfriend leaves husband and husband moves into a flat on his own and meets with the wife and they have sex once. It does not sound like this is a resumption according to Feltus case. But if they did intend to get back together then the 12 months would begin again according to one of Keysner.

* Husband files for divorce on 2 April 2012. Serves it on the wife. If the separation occurred on 1 March 2011, you take away one month for the resumption, and thus 12 months has expired. But with a different view on the first point, the application would be premature.

* Week later he called the wife drunk saying he doesn't know if he wants a divorce. After he has filed the application it does not affect s 50 but according to Thompson, it is relevant to s 48(3) - is there a likelihood of a resumption in the future? But the court would not be likely to be satisfied by these facts. Question (B)

* Husband and wife are married but he goes overseas in Dec 2011. Wife had one child from another relationship, aged 6. Wife meets another man and decides to separate. She lives with the other man but doesn't tell the husband. Only tells husband, 9 months later when he gets back. Her child lives with her mum during the week and with the wife and new partner on the weekends.

* There has been indirect communication because she moved out. She had the intention and it was put into effect (Faulk case). Seperation begins when she moves out (Tye).

* It is a short marriage, less than 2 years in total including the 12 months. She needs a certificate based on reconciliation with a counsellor under s 44(1B) or (1C) or she could

claim there are special circumstances because he has gone away again. Special circumstances may she is scared of him, he is violent, he is not around etc.

* S 55A must be considered because there is a child under 18. There must be proper arrangements for the care of the child, welfare and development. Under subsection 3, is the child under the definition. What arrangements should be made? (Warne). It would be better if she just waited the 2 years. 55A(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.

Spouse arrangements

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Finlay, Bailey-Harris and Otlowski: Uncommon for long term spouse maintenance orders to be made. Orders for property settlement may also make them unnecessary or impractical. The court must take them into account in making property divisions. S 84 of the old Maintenance Act said that the court can take into account the means, earning capacity and 'conduct' of the parties (conduct means the bad sort). This was in the previous legislation and this made sense in a fault based divorce system. We no longer have a fault based system. Read these: s 4(1)(c) 'matrimonial cause' - proceedings with the parties with respect to maintenance (no condition to be part of a divorce or nullity proceeding). S 71A - if there is a binding financial agreement these provisions will not apply: o S 72: what has to be shown for a spouse to receive maintenance. The language is gender neutral in these sections. Having care and control of a child in marriage under 18, age or physical incapacity for appropriate gainful employment and for any other adequate reason - that is one party is reasonably able to maintain the other who cannot. (2) means that bankrupts' property may be used for maintenance. o S 74 is the power of the court to make these orders as it considers appropriate. o S 75 are the matters to be taken into account by the court in relation to spousal maintenance like the age and state of health of each of the parties, income property and financial resources and mental capacity for gainful employment, who has care and control of the child who has not reached 18, commitments are necessary to enable the party to support themselves or the child, the responsibilities of either party to support the other, eligibility for pension allowance or benefit, a standard of living that is reasonable....duration of marriave, the financial circumstances in cohabitating with another person...any child support that a party to a marriage has provided or will provide. When considering these provisions it is obvious there is not a formula for spousal maintenance. The court instead is given wide discretion. There is a whole list of open ended criteria to choose what is fair to do. In the Marriage of Bevan [1995] : the law for spousal maintenance requires: o A threshold finding under s 72; o Consideration of s 74 and s 75(2); o No fettering principle that pre-separation standard of living must automatically be awarded where the respondent's permit; and o Discretion exercised in accordance with the provisions of s 74, with 'reasonableness in the circumstances' as the guiding principle. Patterson (1979): they were married in 1966 and separated after 12 years. Had 2 kids, 7 and 5 years old. They were both school teachers at the same high school. The husband has re-partnered and doesn't want to pay maintenance - he argued that her job is still available at the school she was at before, the kids are still young but she has relatives in the area to pay child care, even if I wanted to pay

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