It is increasingly common for couples to separate within two years of the date of their marriage. This can be the case even if the couple were in a de facto relationship for many years prior to their marriage.
Grounds for Divorce
The only ground for divorce in Australia is an irretrievable breakdown of the marriage; section 48(1) of the Family Law Act 1975 (Cth). The way that couples must prove that the marriage has irretrievably broken down is by 12 months of separation. That is, divorce is not available to married couples unless they have been separated for at least 12 months; section 48(2) of the Family Law Act 1975 (Cth).
If a couple has been:
a) has been married for less than two years;
b) has been separated for at least 12 months of that period; and
c) applies for divorce;
then the Court is more likely to form the view that there is a reasonable chance that they will get back together. The Court will not grant a divorce if there is a reasonable chance of reconciliation (getting back together); section 48(3) of the Family Law Act 1975 (Cth).
Special Evidence of Marriage Breakdown
In circumstances where the parties have been married for less than two years, the Family Court will require some additional evidence that the marriage has irretrievably broken down.
Before the parties file an application for divorce, they must attend counselling with an approved family and child counsellor to discuss the possibility of reconciliation. The counsellor will need to complete and sign a certificate to confirm that the couple has participated in counselling. The parties can then file an application for divorce, and that application is supported by the counsellor’s certificate.
Alternatively, if the parties have already filed an application for divorce, then they must also file an affidavit setting out the special circumstances as to why they should be able to seek a divorce within two years of marriage.
The Court encourages couples who are separating to seek help before deciding that divorce is the only option. Two years is a short marriage, even in the context of family law. The parties should be certain that there is no chance of getting back together before applying for a divorce. That is, divorce should be a last resort.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.