Can I oppose an Application for Divorce filed by my spouse?

Since 1975, Australia has had a “no fault” Divorce system.

Prior to 1975, to obtain an order for Divorce to terminate a marriage, the applicant had to prove that the other party had breached the marriage contract sufficiently for the Court to order that the marriage could be terminated.

The ground of Divorce was most commonly breach of the marriage contract by infidelity. To prove infidelity to the Court, the applicant was required to show evidence of an affair.

This resulted in private eyes pursuing photos of indiscretions for the applicant to show the Court.

Introduction of the “no fault” Divorce

By 1975, the Whitlam government supported a less onerous approach to obtaining a Divorce. The main reason for this was that contested proceedings alleging infidelity were not beneficial for the family, particularly the children. In addition, Divorce proceedings in relation to fault were costly and time consuming.

It was believed that the Court’s resources could be put to better use, supporting the family to make arrangements post-divorce, with the division of property and making parenting arrangements, rather than caught up in proceedings to determine who ruined the marriage.

The sole ground for Divorce

From 1975, the sole ground for Divorce in Australia has been ‘irretrievable breakdown’ of the marriage. The only thing that needs to be proved for a Divorce Order to be made in respect of the marriage (besides that the Court’s jurisdiction applies) is that the parties have been living separately and apart for a period of not less than 12 months. Even where there has been a resumption of cohabitation (in an attempt to reconcile) of three months or less, the period before and after the resumption may be used to calculate the 12 months.

Therefore, provided a person can prove at least 12 months of separation, they will have sufficiently proven to the Court that a Divorce Order is to be granted. It doesn’t matter if one of the parties does not want to get a Divorce; the decision to separate does not need to be mutual and a sole application can be made for Divorce without involving the reluctant party, except to serve the Court documents on them to make them aware of the proceedings.

A Divorce Application can be opposed, however, the only basis on which opposition can succeed is that:

  • the Court does not have jurisdiction to make a decision,
  • the parties were never married in the first place, or
  • the requirement for 12 months’ separation has not been satisfied.

To put one or more of the above contentions to the Court, a person can file a Response document in the Court responding to the Application for Divorce. A Response must be filed within 28 days of the Application for Divorce being served. The Response sets out the reasons for opposing the Divorce and, if any one of them is proven, the Divorce order will not be made.

Where the date of separation is disputed so as to argue that there has not been 12 months of separation, the applicant will generally discontinue their Application for Divorce until 12 months of separation has occurred from the date of separation alleged by the other party.

Occasionally an applicant will choose to argue the date of separation however these proceedings are generally too expensive to carry on where allowing some further time will suffice in any case.

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.

Solicitor Director
Family Dispute Resolution Practitioner