Kydon Segal Lawyers


Separation, Divorce and Marriage – why timing matters

Dealing with the breakdown of a relationship is a difficult time for most separated parties, however part of the separation process is often focused on “moving on”.

In Australia, parties must be separated for 12 months before applying to the Federal Circuit Court for a Divorce. A Divorce Application can be made individually or jointly and may be treated differently for that reason. If the parties already have court proceedings on foot, the Divorce Application should be made under the same file number, where possible.

For instance, where an sole application is made by one party and the parties have a child or children under the age of 18, a Court attendance will usually be required. Joint applications, on the other hand, will not ordinarily require a Court attendance by either party, unless they express a wish to do so.

After waiting the required 12 months of separation, a Court date will usually be allocated between 6-12 weeks from the date of filing a Divorce Application. This timeframe for listing of the Divorce is subject to change, as it depends on the caseload and backlog experienced by the particular Registry of the Court that the application is to be heard in.

Before granting a Divorce, the Court will need to be satisfied that:

  1. A valid marriage existed; and
  2. That marriage has broken down irretrievably.

The Court will take into consideration any children of the marriage, and ensure that there are arrangements for sufficient care, welfare and development of those children.

Once the Divorce Order is granted, it takes a further one month and one day to come into effect and terminate the marriage.

These timeframes are particularly important for separated people who re-partner and intend on re-marrying. In Australia, plurality of marriage (or “bigamy”) is illegal. Furthermore, where a person who is already married enters into a further marriage, there is a chance that the second marriage will be nullified, or found void.

In the recent decision of Kirvan & Tomaras [2018] FamCA 171 the Court heard of circumstances where a lady had married whilst overseas in 2015 and subsequently moved to Australia on a student visa in March 2016. One month after declaring her marriage on her visa application forms, she advised the Department of Immigration that she and her husband had separated, which ultimately prevented the husband from moving to Australia on a similar visa.

Divorce proceedings were commenced and, after lengthy delays from the complications in locating the husband overseas and adequately serving him with the Divorce Application, the divorce was finally granted on 22 October 2017.

In the meantime, the wife had re-partnered in Australia and married Mr Tomaras in mid-2017. The Court heard that both parties knew that the wife’s previous marriage was not formally dissolved at the time of the second marriage, however they were concerned about the cultural integrity of living together without being married.

The Judge criticised the wife’s solicitor who practiced primarily in Migration Law and described their submissions as “unconvincing”. There was no evidence put before the Court that the marriage celebrant had been made aware of the wife’s true marital status, and the second marriage was declared null in accordance with the Marriage Act 1961 (Cth).

The Judge went on to detail bigamy, an offence which carries a penalty of 5 years imprisonment under section 94 of the Marriage Act 1961 (Cth). The Judge also noted that giving notice to an authorised celebrant which is known to be or contain a false statement carries a penalty of 6 months imprisonment or five penalty points (which currently amount to $210 per point, so a fine of $1,260). Ultimately the matter was not referred to the Attorney-General for prosecution, however the second marriage was found to be null and void.

Families and relationships can be extremely complicated. If would like more information on separation, divorce and marriage, please contact Meagan Murrell through our contact page or  (02) 9344 2000.