Since the passage of the Family Law Act 1975 (Cth), the sole ground for obtaining a divorce is that the marriage has broken down irretrievably. Proving that one party was at fault is no longer required or even relevant.
To establish an irretrievable breakdown one or both parties need to satisfy the Court that they have been separated for at least 12 months and there is no prospect of reconciliation.
Periods of separation can be aggregated if the parties reunited for no longer than 3 months during the intervening periods. In certain circumstances the parties can be separated while still living under one roof.
Where there is a child of the marriage, the applicant(s) will normally also need to satisfy the Court that proper arrangements have been made for the care of the children before a divorce order will take effect. Counselling requirements also apply where the marriage is of less than two years’ duration.
Divorce applications can be filed by one party or both jointly, with service requirements applying in the former case. While sometimes uncooperative, it is rare for a respondent to contest a divorce, as to do so is merely to delay the inevitable; the other party will eventually be entitled to a divorce once sufficient time has elapsed since separation.
ANNULMENT OF MARRIAGE
In cases where there is doubt about the validity of the marriage, the Court may grant an order for annulment of the marriage. Circumstances where a marriage might be invalid and annulled include where a party was already married (bigamy), placed under duress, a minor or closely related to the other party (incest). In contrast to a divorce order, an annulment order has the effect of declaring that the parties were never legally married in the first place, despite any marriage ceremony that may have been held.