Admittedly, this is not something that comes up very often. I suspect that is usually because when clients come to see a family lawyer, they are only recently separated and are not able to apply for a Divorce for about 12 months.
However, every so often someone asks the question: “Can I stop my spouse getting a Divorce?”.
The definition of Divorce
The Family Law Act (1975) provides that the only ground upon which an application for Divorce can be made is the irretrievable breakdown of the marriage.
What is the irretrievable breakdown of mariage?
The irretrievable breakdown is established by the parties having separated and then having lived separately and apart for not less than 12 months prior to the application being filed.
If the Court can make a finding of fact about this, then, even if one spouse does not want to be divorced, the Court can still make a Divorce Order.
Can you still live together and get a divorce?
That brings about the question I am sometimes asked. “If we kept living together in the same house, can we get divorced?”
Couples who have, usually because of necessity, lived for some or all of their period of separation under the one roof, can still be separated. If they have done so, they need to provide evidence to the Court from themselves and third parties about the circumstances surrounding the separation so that the Court can make the finding that the marriage has irretrievably broken down. So having lived together after separation is not a means to prevent a Divorce being granted.
All of the above is subject to the following: if the Court finds that there is a reasonable likelihood of cohabitation being resumed, it will not grant the Divorce. It is difficult to think of a scenario, though, where one spouse is adamant that there is no prospect of reconciliation, that the Court would find that there was that likelihood. It would more than likely need some doubt about the finality of the separation expressed by both spouses.
How Children Factor Into A Divorce
If there are no children of the marriage (including children of either party who were treated by the spouses as children of the marriage), then the irretrievable breakdown of the marriage is the only requirement for a Divorce Order to be granted.
If there is a child or children of the marriage, then in addition to the irretrievable breakdown, the Court must also make a declaration that it is satisfied that appropriate arrangements are in place for the care, welfare and development of those children.
If the Court can’t be satisfied that those arrangements are in place, then it may adjourn the application for Divorce until a report can be obtained from a family consultant regarding those arrangements.
What about Parenting Orders?
Ordinarily, if there are Parenting Orders in place regarding the children, the Court will make the declaration because even if one spouse is not happy with the terms of those Orders, the Court considered them appropriate when making the parenting Orders. If there are issues with non-compliance with the Orders, that could be an issue raised with the Court in the Divorce application.
So the fact that the parents have not implemented parenting arrangements may be a reason to postpone, but not prevent, a Divorce Order being made.
Preventing A Divorce Being Granted Is Extremely Difficult
Whilst all lawyers who have practised have heard applications for Divorce being objected to on religious grounds and on emotional grounds, unless the Court can be given evidence that the relationship has not irretrievably broken down or unless there are not appropriate arrangements in place for children, any attempt to prevent the Divorce being granted are likely to be unsuccessful.
We Can Help
BGM is a specialist Family Law Firm Gold Coast.
If you have questions about your Divorce or any other family law issue, feel free to arrange an appointment at BGM Family Lawyers or call 1300 246 529.
