Marriage and Divorce

6th Jun 2019

Hillary Clinton said of her husband's indiscretions – "he was a hard dog to keep on the porch".

Marriage, infidelity and divorce are very much part of our social fabric.

The following comments relate to marriage breakdowns rather than de facto relationships (although family law now has virtually the same application to de facto relationships).

The bad old days of private investigators armed with cameras peeping through motel room windows to catch those "straying from the porch" are no longer necessary to support divorce.

Providing you have been married for two years, the only basis for divorce in Australia today is proving the married couple have lived separately and apart for a continuous period of twelve months and that there is no reasonable likelihood of a reconciliation.

It is possible to "live separately and apart" under the one roof.

Fault is irrelevant. Bill Clinton's indiscretions may have damaged his presidency and exposed him to  possible impeachment – but would not provide grounds for divorce in Australia.

If there are children of the marriage under eighteen years of age, the family court will need to be satisfied that appropriate arrangements have been made for their care, welfare and development.

 Parenting (custody) orders for children under eighteen can be dealt with before or after divorce. Divorcing parents are encouraged to reach agreement on sharing parenting responsibilities for children including allowing for time with other people such as grandparents.

The division of property and maintenance can also be dealt with before or after divorce. The parties should apply for these orders within twelve months of divorce although the family court will invariably entertain an application after twelve months.

The primary objective of court imposed or agreed property and maintenance orders are to finalise all financial arrangements between the parties. Final orders reached by agreement or court proceedings must recognise the direct and indirect financial and non-financial contributions of the parties including contributions to the welfare of the family as a homemaker.

The family court has a very wide discretion in making property or maintenance orders which reflect the unique circumstances and characteristics of marriages.

Again parties are encouraged to reach agreement rather than seeking court imposed decisions.

Counselling and mediation between the parties is encouraged (and is sometimes compulsory) and available in most areas as an alternative to court proceedings.

Family trusts, corporate structures, business partnerships and tax implications warrant consultation with your lawyer and accountant to ensure your divorce and financial arrangements are both fair and reasonable to both parties and children.

Chris Leahy

General Counsel Liston Legal