Under the Family Law Act 1975 (Cth) (the Act), the only grounds for divorce in Australia is if a marriage has broken down irretrievably. There are a number of aspects related to how the irretrievable breakdown of a marriage is determined which this piece will explore.

How to prove that the marriage has broken down irretrievably

Under s 48(2) of the Act, the ground for divorce shall be held to have been established if the court is satisfied that the parties have separated and have lived separately and apart for at least 12 months preceding the date of filing an application for divorce. However, it should be noted that s 48(3) of the Act states that an order for divorce shall not be made if the court is reasonably satisfied that there is a likelihood of the parties resuming cohabitation.

Cohabitation

Cohabitation can resume at any stage after separation, and the parties are able to live with one another as husband and wife for one period up to three months without having the separation period being affected if the parties choose to separate once again as set out in s 50(1) of the Act. Additionally, isolated instances of sexual intercourse may not break the separation period, as was noted in Feltus (1977) FLC 90-212 where the Family Court of Australia in Adelaide held, “[t]he arguments were based on the assumption that cohabitation had resumed. On the evidence it had not. Six or seven casual and intermittent acts of sexual intercourse do not amount to a resumption of cohabitation.”

Separation

In demonstrating that a period of separation has begun, there are a couple of general actions that may be used as evidence, and can include:

• one party to the marriage informing the other that the marriage is over, and which, separation will be considered to have begun from that point onwards; or
• one party to the marriage may have begun living with a new partner or has taken steps to sever financial ties which may be actions considered as evidence that separation has commenced.

Separation can also occur when the parties may have separated, yet still reside in the same property. When demonstrating separation under one roof, it must be shown that at least one party to the marriage has considered the marriage has come to an end, and that the parties are residing independently of one another. Evidence of separation under one roof can include informing outside parties such as friends, relatives, or neighbours that the marriage has come to an end. Additionally, the parties also no longer engage in the usual activities that signify a marriage, such as sleeping in the same bed, cooking or cleaning for one another, or engaging in social events as a couple are just some examples.

Marriages under two years

For marriages of less than two years, an application for divorce will only be granted if the parties have seen a counsellor about reconciliation. However, the requirement to see a counsellor can be waived if one party refuses to attend counselling, or if there has been a history of violence in the relationship. If there has been a history of violence, the counsellor should be informed of the history and separate sessions should be organised.