There is no question that going through a divorce can be a difficult period of time in an individual’s life. Whether the decision for separation was unilateral or mutual, or if there are children involved, these circumstances can certainly cause significant emotional and financial strain.
On top of this, come the legal aspects of finalising separation by seeking a divorce, as well as other parenting or property arrangements that may be required.
Generally, there are only two (2) requirements that need to be satisfied when making an application for divorce:
- One or both of the parties of the marriage must have a connection to Australia. This can be satisfied if they are an Australian citizen, an ordinary resident of Australia, or they have been a residing in Australia for 1 year prior to the date of filing for a divorce.
- The parties to the marriage must have been separated and lived apart for 12 months prior to applying for a divorce. In some circumstances, the parties may be separated but living under the same roof due to financial difficulties or to care for the children of the marriage.
If the parties have been living under the same roof, proof of separation may still be possible. This will require parties to show that they have lived separate lives; elements pertaining to this may include change in sleeping arrangements, separation of financial arrangements, and notification to friends and family of separation.
However, there is an additional requirement when the parties have been married for less than 2 years.
What are the requirements if I have been married for less than two years?
For marriages under two years, the above two requirements must still be satisfied—namely that there must still be a connection to Australia and 12 months of separation. However, in addition to this, the parties must attend counselling and obtain a signed counselling certificate to accompany their application for divorce.
The counselling certificate must state that the parties have considered the possibility of reconciliation with the assistance of a family counsellor, an individual or organization nominated as a family consultant, or a person nominated by an officer of the court.
The requirement for counselling is made for the purpose of preserving and protecting the institution of marriage as the union of 2 people to the exclusion of all others voluntarily entered into for life, and for the purpose of reconciliation or the improvement of the parties’ relationship to each other and their children. Ultimately, the Court wants to be satisfied prior to granting any divorce that there is no possibility of the parties reconciling their relationship.
Despite this, there are some exceptions to the counselling requirement.
Exceptions to the requirement to attend counselling
Where there are special circumstances, it may be possible to apply for a divorce without attending counselling. It is impossible to give an exhaustive list of examples which may amount to special circumstances, however special circumstances may include a current protection order or history of domestic violence or an inability to locate a party of the marriage.
Additionally, special circumstances may exist where one party refuses to attend counselling. For example, in In the Marriage of Nuell, the wife was allowed to file an application for divorce without a counselling certificate because she had attended counselling by herself (and confirmed that she did not want to reconcile) and the husband simply did not respond to the counsellor’s request for him to attend.
It is important to note that a mere refusal to attend may not be sufficient to establish special circumstances. In In the Marriage of Philippe, the wife made an application for divorce citing special circumstances because the husband had a new partner and told the wife he was not prepared to consider a reconciliation. The Court did not find that any special circumstances existed (distinguishing the wife’s application from that in Nuell) because the parties had not in fact considered reconciliation.
Where special circumstances are present in a marriage less than 2 years, the party making the application for divorce must file an affidavit indicating why counselling has not occurred and the details of any special circumstances that may be applicable.
Married for less than two years and have questions?
If you have been married for less than two years, and you, or your spouse, wish to apply for a divorce, you must have a ‘connection to Australia’, you must have separated for at least 12 months, and you must have attended counselling unless a special circumstance applies.
If you or your spouse wishes to apply for a divorce, it is important that you seek legal advice prior to doing so. It is also important to find out whether any limitation periods for family law property settlements apply in relation to your circumstances.
If you would like assistance with your divorce application or any assistance with parenting arrangements, and/or property settlement, please contact us on (07) 3252 0011 and one of our family lawyers would be happy to assist you.
For more information on the divorce application process in general, you can find more information here.
 See Family Law Act 1975 (Cth) s 49(2).
 Family Law Act 1975 (Cth) S 44(1B).
 See Family Law Act 1975 (Cth) s 43(1)(a), (d).
 (1976) 9 ALR 533.
 (177) 20 ALR 381.