Divorce

When applying for a divorce, the application must be completed, sworn and filed with the Federal Circuit Court. The hearing date for when the divorce application is given, is generally two months after the date of filing. The other party must be served with the application at least 28 days before it is to be heard, or in circumstances where the other party is overseas, 42 days.

When filing a divorce application in Australia, the application must be filed with the Federal Circuit Court along with a filing fee and heard at first instance by a Registrar of that Court. In order for the Registrar to grant a divorce, the requirements of the Family Law Act (as outlined above) must have been met.

A Decree of Nullity means that the parties have never been married and that the marriage did not exist in the eyes of the law. The Family Court is the only court which has the jurisdiction to make such a declaration. The following circumstances deem a marriage void:

• Either one of the parties was married to someone else at the time of the marriage.
• The parties are in a prohibited relationship, meaning that a party is intending on marrying their grandparent, parent, sibling or half-sibling.
• The formal requirements as by the Family Law Act have not been satisfied and correctly followed.
• The consent of either of the parties is not true consent such as:
  • The consent was obtained by duress or fraud;
  • Either party mistakenly identified the other party or the nature of the ceremony;
  • Either party is mentally incapable of turning their mind to the nature and effect of a marriage ceremony;
  • Either party is not of a marriageable age.

As neither party has been married, the parties can revert to the status of ‘never validly married’.