Grounds for Divorce 

Australian law recognises marriage both between parties of the opposite sex and also same-sex spouses. 

The sole ground for a divorce order is that the marriage has broken down irretrievably. That ground is established, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for divorce order. A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. 

Where there are children of the marriage who have not attained 18 years of age, then a divorce order does not take effect, unless the court has declared that it is satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of those children, or there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made. 

Whilst Australian family law recognises the existence of de facto relationships, there is no process akin to a divorce order that applies to the ending of a de facto relationship. The question of whether a de facto relationship existed, its duration and when it ended, is a question of fact and law.

The Process and Timeline for Divorce

The parties to a marriage can, whether separately or jointly, apply to a court for a divorce provided there has first been a period of 12 months of separation. 

Separation can take place under the one roof, provided that there is independent evidence that the relationship has broken down, notwithstanding that the parties remained living (separately and apart) for some or all of that period in the same household.

An application for divorce is filed with a court exercising jurisdiction under the Family Law Act. A divorce hearing is ordinarily held electronically (rather than in person) approximately 8-12 weeks after the divorce application is filed.

Rules for Service of Divorce Proceedings

An application for divorce in Australia can be made by one party to the marriage, or by the parties jointly.

Where the application is filed by one party to the marriage alone, then service of the divorce application must be in accordance with Court Rules for service. Ordinarily service is effected personally on the respondent, but can be via a legal representative of that person where they have instructions to accept service of those proceedings. In the ordinary course service should be effected not less than 28 days prior to the date of the divorce hearing, although time for service can be abridged by consent.

Treatment of Religious Marriages and Divorces in Australia

Marriage and divorce in Australia are governed by the Marriage Act and Family Law Act, respectively. 

Whilst parties are free to undertake religious marriages or religious divorces, to be recognised under Australian law, the marriage and/or divorce must comply with the Australian legislative provisions. For example, whilst parties of the Jewish faith may obtain a Gett, that Gett would not constitute a divorce for the purposes of Australian law. 

Separation 

The question of when parties to a marriage separated, for the purposes of the start date of the 12-month period of separation for making an application for divorce, is one of fact and of law. There is no requirement to register a separation, nor is there any process of obtaining a decree of judicial separation. 

Divorce in Australia is on a “no fault” basis and separation can occur notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of the parties to the marriage.

Nullity of Marriage

It is possible to make an application for a decree of nullity of marriage. 

The only ground is that the marriage is void. This applies in only extremely rare cases, such as where a party was mistaken as to the identity of the person they were marrying or where the consent to marriage was procured by duress. 

Jurisdiction to Commence Divorce Proceedings in Australia 

Proceedings for a divorce order under the Family Law Act may be instituted if, at the date on which the application for divorce order is filed in the court, either party to the marriage is:

• an Australian citizen;
• domiciled in Australia; or
• ordinarily resident in Australia and has been so resident for one year immediately preceding the date of filing. 

These grounds apply to all marriages, including same-sex marriages. 

Citizenship, Domicile and Ordinarily Resident

Proof of Australian citizenship can be established either by birth of a party to the marriage in Australia (by which they have therefore obtained Australian citizenship) or by a subsequent grant of Australian citizenship to persons born overseas. 

A party is taken to be domiciled in Australia if it is the country in which they have made their home and they have formed an intention to remain in Australia for an indefinite future period. 

A person will be taken to be ordinarily resident in Australia if they are in Australia, intend to reside in Australia permanently, and, for example, are not in Australia merely for the purposes of a holiday. Matters such as the intention or purpose of presence in Australia, family ties, business and employment connections, location of assets, and length of period in Australia, are all factors that may be given weight in determining whether a party is ordinarily resident in Australia.

Challenging Jurisdiction to Grant a Divorce

A respondent to a divorce application can challenge the Australian court’s jurisdiction to determine divorce proceedings. That is, submitting that the requirement of citizenship, domicile or ordinarily resident has not been made out. 

Applications for a Stay of an Australian Divorce Application to Pursue Divorce Proceedings in a Foreign Jurisdiction 

Circumstances can arise where more than one country has jurisdiction to hear and determine a divorce application.

The respondent to an Australian divorce application may acknowledge that the Australian court has jurisdiction to hear a divorce application, but if they have filed an application for divorce proceedings in a foreign jurisdiction they can seek a stay of the Australian proceedings, arguing that Australia is a clearly inappropriate forum. 

Leaving aside cases whether the competing jurisdiction is New Zealand, the Australian courts do not apply a forum test of ascertaining what is the natural forum, rather the issue is whether Australia is a clearly inappropriate forum to hear and determine the matter. A series of factors are considered, which may include but not be limited to questions such as:

• the order in which divorce proceedings were commenced in Australia and overseas; 
• the date on which service of each of those divorce proceedings was effected; 
• the date allocated for the hearing of each divorce application; 
• the connection of the parties to Australia; 
• the place of marriage; 
• the effect of a divorce order under foreign law; 
• whether there are other proceedings on foot in another jurisdiction referrable to the marriage;
• whether there is a legitimate juridical advantage to proceeding in a particular country; and
• questions of time and cost associated with divorce proceedings. 

Jurisdictional Grounds to Commence Financial Proceedings 

Financial proceedings (property settlement and/or spouse maintenance) can be commenced in Australia between the parties to a marriage if, on the date the application instituting the proceedings is filed in a court, either party to the marriage is: 

• an Australian citizen;
• ordinarily resident in Australia; or  
• present in Australia.  

As can be seen by the last of these grounds, the jurisdictional base is very broad.  

Grounds for Jurisdiction for Commencing Financial Proceedings Between De Facto Couples 

Different and more complex jurisdictional grounds apply for parties to a de facto relationship who wish to commence proceedings in Australia. 

Geographical Connection  

A court can only make a declaration about the existence of a de facto relationship if it is satisfied that one or both of the persons referable to the de facto relationship were ordinarily resident in a participating Australian jurisdiction when the application was commenced. Further, the court must be satisfied that either both parties to the de facto relationship were ordinarily resident in Australia during at least a third of the de facto relationship, or that the applicant made substantial contributions in relation to the de facto relationship of the kind referable to the Australian legislation. An alternative condition for the making of an order for property settlement or spouse maintenance in relation to a de facto relationship is if the parties to that de facto relationship were ordinarily resident in Australia when the relationship broke down. 

Other Requirements Including Length of De Facto Relationship, Birth of a Child 

Over and above the geographic requirement, a court may only make an order for property settlement or spouse maintenance in a de facto relationship if it is satisfied: 

• that the period, or the total of the periods, of the de facto relationship is at least two years;
• that there is a child of the de facto relationship;
• that a party to the relationship, being the applicant, made substantial contributions and a failure to make such an order or declaration would cause them serious injustice; or 
• that the de facto relationship is or was registered under a prescribed law of a state or territory of Australia.  

If parties to a de facto relationship marry each other, then their rights to any de facto property settlement or spouse maintenance cease, and their rights are instead governed by the marital provisions of the Australian Family Law Act.   

Effect of a Binding Financial Agreement 

Australian law enables parties to make binding financial agreements (BFAs) between them, whether before, during or even after a marriage has ended, which cover any or all of their property and or spouse maintenance rights. Strict rules apply to the making of those BFAs (see 2.5 Prenuptial and Postnuptial Agreements). 

If there is a BFA recognised by Australian law as binding and which has not been set aside, then the effect of such a binding agreement is that the provisions of the Family Law Act do not apply to any of the following matters in so far as the agreement covers them:  

• the maintenance of one of the parties;  
• the property of the parties or either of them; and 
• the financial resources of the parties or either of them.  

Applications Contesting the Financial Jurisdiction of the Australian Courts  

A respondent to proceedings for property settlement or spouse maintenance in Australia may challenge the jurisdiction of the Australian court to hear and determine that case.   

The Australian court can make preliminary ruling on the question of whether or not it has jurisdiction to hear and determine some or all of the proceedings. It is a pre-requisite to the making of any order for property settlement or spouse maintenance that the court first be satisfied that it has jurisdiction.   

Applications to Stay Financial Proceedings in Australia on Forum Grounds 

It is not uncommon for the courts of one or more country to have jurisdiction in respect of matters arising out of a marriage or de facto relationship. 

The respondent to financial proceedings in Australia (whether between married or de facto parties) who has instituted proceedings in the courts of a foreign jurisdiction can make an application seeking a permanent stay of the Australian proceedings on the grounds that Australia is a clearly inappropriate forum to determine some or all of those matters.  

Leaving aside matters involving the courts of Australia and New Zealand (which are governed by specific legislative provisions between the countries), the Australian Family Law Courts apply the test in financial cases of whether Australia is a clearly inappropriate forum (as distinct from a natural forum test) for the determination of the matter. The applicant seeking the stay bears the onus of making out that ground.  

Applications for a stay on forum grounds are ordinarily dealt with on an interlocutory basis. They often require that a single expert be appointed to give evidence to the court about the process and laws of the competing forum or forums. The Australian court has regard to a series of different factors in reaching a determination of whether Australia is a clearly inappropriate forum. Those matters may include but not be limited to questions such as: 

• the connection of each party to the proceedings with each forum, including matters such as citizenship, domicile and ordinarily resident; 
• the place of marriage between the parties;  
• the nature and situs of the property and financial resources of the parties or either of them;  
• the assets that may need to be valued, their situs and the costs of that process in various jurisdictions;  
• the order in which proceedings were commenced in different countries and the stage they have reached;  
• when service was effected of those proceedings on the other party;  
• the time and expense of proceedings in each country; and 
• whether there is any legitimate juridical advantage to either party in either jurisdiction. 

Applications in Australia for an Anti-suit Injunction 

A litigant may have commenced proceedings in the courts of Australia seeking financial relief. Their spouse, whether of a marriage or a de facto relationship, may have commenced proceedings in a foreign jurisdiction. In addition to potentially seeking a stay in the courts of the foreign jurisdiction of those other proceedings, a litigant in Australia can make an application to the Australian court seeking the grant of an anti-suit injunction against the other party personally, seeking to restrain them from taking any step in the foreign proceedings other than an order dismissing those proceedings or adjourning them pending the completion of the Australian proceedings. 

Whilst the making of an order for an anti-suit injunction by the Australian courts is relatively rare (given judicial comity), the principles upon which an Australian court will proceed when determining such an injunctive claim are (in general terms) the same as those that apply when seeking an order for a stay of Australian proceedings on forum grounds. 

Connection between Australian Financial Proceedings and a Foreign Divorce

There is no requirement in Australia for proceedings for a divorce to be first instituted or a divorce order made to invoke the Australian jurisdiction for property settlement or spouse maintenance relief. Proceedings for financial relief in Australia can (subject to time limitation periods) commence even if the divorce order was obtained in a foreign jurisdiction.  

If, however, financial relief is already granted in that foreign jurisdiction, then questions would arise as to whether the Australian financial proceedings should be permanently stayed, on grounds which might include abuse of process or estoppel.   

Commencement of Proceedings 

Except in cases of urgency, parties seeking financial relief in Australia must take genuine steps to try and resolve matters outside of the court system before instituting proceedings under the Family Law Act for property settlement and/or spouse maintenance. This requires, in general terms, that parties to a marriage or de facto relationship: 

• exchange financial disclosure materials;  
• make proposals for settlement;  
• participate in alternate dispute resolution; and 
• give prior notice of the intention to start a case, including identifying the matters in dispute and the orders that will be sought if proceedings need to be commenced under the Family Law Act. 

Initiating Documents in Financial Proceedings  

Parties to financial relief proceedings under the Family Law Act must file and serve material on the other party or parties at the commencement of the case. 

The applicant for relief will file an initiating application (setting out the precise terms of the final and/or interim relief sought) together with a financial statement (detailing income, expenses, assets, liabilities, superannuation and financial resources). If interlocutory relief is sought, a supporting affidavit or affidavits will also be filed. 

The respondent to the proceedings will generally serve “mirror” documentation where they oppose the relief being sort, or if they seek different interim or final orders from the court. 

Service Requirements 

Except in those rare cases where a party commences proceedings seeking urgent ex parte relief, the applicant must otherwise as soon as reasonably practicable after filing serve sealed copies of the initiating proceedings on each respondent. The rules generally require personal service, however service can be effected on a legal representative for the other party where they have instructions to accept service.  

In cases where a party cannot be served or is avoiding service, an interlocutory application can be made to the Australian court for substituted service (for example, deeming service to be effected by service of the documents by email or other electronic means, or on a workplace, or on the last known residential address of the other party). 

Timeline for Financial Proceedings in Australia 

There is a heavy emphasis in Australia, both prior to the commencement of the proceedings and even after proceedings are commenced, on the resolution of matters through negotiation, mediation or arbitration rather than through court determination. Except in cases where it is impracticable or safety concerns make it impossible, the courts by and large require that parties participate in one or more mediations to try and resolve some or all of their dispute without there being a requirement for a final determination by a court. 

Parties can by consent, whether by private agreement or by an order made by consent in the court, also agree to participate in binding arbitration. A final arbitral award can then be registered with the Australian court and be enforced as if it were an order made by the court. There are (limited) rights of appeal from arbitral awards where an error of law can be established. 

The timeline for Australian court proceedings is as follows. 

• Where interlocutory relief is sought, the court will generally allocate an interim hearing of those matters approximate 4-8 weeks after the application is filed. The precise timing can be shorter or longer depending upon the urgency, complexity and the court’s diary. Interlocutory hearings are often conducted by Microsoft Teams videolink rather than in person, although there is a move back towards “in person” court hearings for interim matters. 
• At the first return date, the court will look at matters of disclosure and valuation, and make procedural directions designed to ensure that parties have given full and frank disclosure, that the relevant property and financial resources have been identified, and to facilitate the appointment of single experts to resolve valuation disputes.  
• Parties will usually be “required” to participate in mediation and directions made to facilitate the conduct of a mediation. 
• If matters cannot be resolved through negotiation or mediation, then depending upon the complexity of the issues, they can be allocated to different levels of the Australian court system. The Federal Circuit and Family Court of Australia (Division 2) deals with the vast majority of financial cases of the “run of the mill” variety. Those cases with multiple parties, complex issues, difficult valuation issues, large asset pools or requiring an extended hearing will be heard by the superior court being the Federal Circuit and Family Court of Australia (Division 1).  
• Within that superior court, there is also a major complex financial proceedings list operating on the eastern seaboard of Australia, where cases of greater complexity or substantial asset pools are allocated for hearing before assigned judges.  
• As a general observation, the timeline for a reasonably complex financial proceeding case, from the date of filing to the date of hearing on a final basis, is presently approximately 14-24 months. 

The Australian system of property settlement following a breakdown of the marriage is governed by the Family Law Act. 

Australia does not have a community of property regime. There are no presumptions or starting points of equality of division of assets. 

The High Court of Australia has made clear that courts exercising jurisdiction to alter property interests under the Family Law Act shall not make an order for property settlement, unless it is just and equitable to do so. That is, there must be a principled reason for altering the property holdings of one or both parties to the marriage. That being said, in the vast majority of cases, particularly those where the marriage has been of reasonable duration and/or there are children born of the marriage, the court will quickly accept that an order for property settlement should be made. 

What is the General Approach to Property Settlement in Australia 

It is often said that there are essentially four steps to determining what order, if any, should be made for property settlement, as set out below.

• The first step is to identify and value the property of each of the parties to the marriage or both of them, and to identify their financial resources. 
• The second step is to assess the contributions made by each party to the accumulation, conservation and maintenance of that property. This involves an assessment of the myriad of contributions, direct and indirect, financial and non-financial, as a homemaker and as a parent. Contributions of a homemaker and parent must be given substantial and not token weight. Whilst there is no assumption or presumption that contributions are equal, it is often the case, absent any significant initial financial contributions by a party or any major gift or inheritance, that contributions are found by the court to be equal.  
• The third step is to have regard to the current and future circumstances of each party. This requires a court to have regard to a series of different factors, most particularly whether there is any income earning disparity between the parties to the marriage, any significant capital disparity, and whether one party has the primary care and control of the children of the marriage. 
• The fourth step requires that any order made for property settlement should be just and equitable.  

Some General Financial Principles and Guidelines 

The Australian court will, in general, approach the identification of the asset pool and assessment of contributions, on a global basis. It is not necessary for there to be any nexus between a particular contribution and a particular asset. 

The Australian court does not exclude, from the pool of property available for division, assets that a party brought into the relationship at the start, nor does it exclude inherited or gifted assets. However, a party may receive a greater contributions weighting in their favour, because they were responsible for the introduction of assets of that nature or were the recipient of the inheritance/gift in question.  

The balance sheet of the property of the parties is determined not as at the date of separation, but as at the date of settlement or final trial. That means that where there is a delay between final separation and trial/settlement, assets acquired and income earned even after separation will form part of the assets available for division under Australian law. 

Full and Frank Disclosure 

There is an absolute obligation on parties to the marriage to make full and frank disclosure of all matters relevant to the case. 

That disclosure obligation is imposed even prior to the commencement of the proceedings. As part of pre-action procedures, parties must make disclosure. The intention is to enable parties to resolve their dispute without court intervention, cognisant of the need to fully appreciate the financial circumstances of the other spouse before they make any interim or final settlement. 

If a party fails voluntarily to make disclosure, then the court can make orders directed against that party requiring that they do so. There are also mechanisms available under the Family Law Act and the Court Rules for various mechanisms for disclosure whether against a party to the marriage or against third parties. These include but are not limited to: 

• subpoenas to produce documents;  
• subpoenas to give oral evidence;  
• requests for answers to specific questions be given on oath or affirmation;  
• notices to admit facts;  
• notices to admit the authenticity of documents; and 
• the making of lists of documents relevant to the case. 

If a party fails to fulfil their obligations for full and frank disclosure, then significant penalties can apply. In extreme cases, a party may have a case against it dismissed if the other party has failed to give them proper disclosure. A judge can also be more robust when making final or interim orders, where they conclude that a party has failed to meet their disclosure obligations. Each party must, before a final trial, file with the court a document known as an undertaking as to disclosure, which sets out their acknowledgement of the existence of those obligations, and confirming to the court that they have met those obligations. 

The Approach to Trusts 

The Australian courts have the power to regard the corpus of a trust as the property of a party to a marriage, where it can be established that the trust is effectively controlled by one or both parties to the marriage and one or other party to the marriage can benefit from that trust. Control of a trust is generally determined by one of the following means: 

• a finding that the trust is a sham;  
• a finding that the trust is the alter ego of a party;  
• a finding that a party controls the trust by virtue of their role as the appointor or protector of the trust, with the ability to replace the trustee; and 
• by findings of control of the trustee by a party and the ability to benefit from the income or corpus of the trust. 

Where a party to the marriage seeks that assets held within a trust structure be available for division, it is ordinarily necessary to join the trustee of that trust to the proceedings under the Family Law Act. This then enables the trustee to be bound by any final orders that are made and enforcement mechanisms. 

Superannuation 

The Australian courts have power under the Family Law Act to make orders for “superannuation splitting” in relation to interests in Australian superannuation funds.   

By way of example, if the parties have AUD2 million in non-superannuation assets and AUD1 million held in superannuation funds, a court might make an order requiring that the superannuation be split equally between the parties (so that each party has superannuation worth AUD500,000) and they each receive a similar percentage division of the non-superannuation assets. 

The Australian courts, in general terms, have no power to make orders against pension or superannuation interests in a foreign country as they are not superannuation interests for the purposes of Australian law. There are some limited exceptions, where an Australian court might, by the making of an injunction in personam directed against a party who has a foreign superannuation interest, require them to bring that interest into Australia and convert it into an Australian superannuation interest or an asset in Australia. However, this will only generally occur:

• where there are no other substantial assets from which a property settlement entitlement could be met;
• where such a transaction could take place under the laws of that foreign country; and
• where there were not significant adverse consequences (for example, tax or withdrawal penalties) that were imposed by the foreign country on such a transaction.  

Australian Approach to Spousal Maintenance 

Courts in Australia have the ability to make orders for spousal maintenance, whether on an interim or final basis, under the Family Law Act. 

There is no automatic entitlement to spouse maintenance under Australian law. 

The applicant for spouse maintenance must first establish that they are unable to meet their reasonable personal needs due to: 

• a physical or mental incapacity;  
• care of a child of the marriage; or 
• another justifying reason. 

If that threshold requirement is met, then the court must assess the capacity of the other spouse to make a payment towards the reasonable needs of the applicant, after allowances are made for the respondent’s own living expenses, child support and any liabilities relevant to the marriage that the respondent is also still meeting.  

By way of example, a court might assess a wife’s reasonable needs, find that she is unable to meet those reasonable needs because she has care of children of the marriage and cannot work, but then find that her husband does not have the financial capacity to pay her spouse maintenance having regard to his own obligations to meet his personal living expenses, pay child support, and potentially pay for example the mortgage on the home or leases for motor vehicles that the wife and children have the benefit of. 

Interim Spouse Maintenance 

Whilst the Australian courts have the power to make final orders for spouse maintenance (ie, continuing even after final property orders are made), they are relatively uncommon. Australian courts tend to approach matters on the basis of seeking a "clean break" between parties on a final basis. What often occurs is that the financially weaker party (commonly the wife, if she has left the workforce and has the care of children under the age of 18 years) receives a larger percentage of the assets by way of property settlement, but no ongoing spouse maintenance on a final basis.  

The making of interim orders, whether by informal agreement, consent order or court order, is more common in the Australian scenario on an interlocutory basis and pending final settlement. Often that spouse maintenance takes the form of payments that a spouse has the benefit of, rather than simply being a payment of cash. For example, the financially stronger spouse might make payments for a mortgage over a home, loan liabilities against other assets, lease obligations on motor vehicles, school fees for children and other outgoings for children and/or the spouse. 

How is Spouse Maintenance Quantified in Australia 

Unlike child support (which operates under a statutory formula), there is no statutory formula or administrative scheme for the calculation of spouse maintenance under Australian law. 

It requires firstly an assessment of the reasonable weekly needs of the applicant spouse. This is not necessarily identical to the level of expenses during the course of the marriage, as Australian law recognises that there are greater costs involved in running two households rather than one, following the breakdown of the marriage.  

A determination is then made as to whether that spouse has the capacity to meet some or all of their own expenses. 

To the extent that they cannot and there is a shortfall, the court then assesses the reasonable weekly expenses of the respondent and measures that against their own income and at times property or financial resources. This requires consideration of what expenses that respondent spouse might be paying for the benefit of the applicant, such as mortgage, loans, leases, school fees and the like. To the extent that there is a surplus income available, then the court has the power to make an order for spouse maintenance against that surplus. 

Interlocutory spousal maintenance proceedings are generally conducted by a Judicial Registrar of the Federal Circuit and Family Court of Australia Division 2 (save in Western Australia). They are ordinarily done “on the papers”, with the Family Court hearing submissions from the parties or their legal representatives, reading the material filed and having regard to documents produced under subpoena, but without cross-examination taking place at that interlocutory stage. 

Australian law recognises prenuptial and postnuptial agreements if they meet the stringent technical requirements imposed by the Family Law Act.   

These documents, known under Australian law as BFAs, will oust the jurisdiction of the court to make orders for property settlement in respect of those matters covered by the agreement, and/or prevent a court from making orders for spouse maintenance following the breakdown of the marriage. 

Financial Agreements in Relation to Married Persons 

A BFA can be entered into prior to marriage, following the date of marriage, after separation or even after the divorce. 

The BFA can cover some or all of the property of the parties to the marriage. If its terms are binding, and the BFA is not later set aside by a court, then the court’s power to make orders is ousted in respect of those matters covered by the BFA. 

To be binding, a BFA must be in writing, have certainty as to its terms, specify the legislative provision which it is made pursuant to, and each party must receive a statement of independent legal advice from an Australian qualified legal practitioner.   

Challenges can also be made to BFAs seeking to set them aside on grounds that largely reflect those found when challenges are made to contracts or agreements. For example, a BFA may be set aside due to undue influence, unconscionable conduct, duress, fraud or misrepresentation. 

The technical requirements under the Family Law Act are strictly imposed by the court. BFAs are binding if, and only if, they meet the exacting statutory requirements contained in the Family Law Act unless a court finds it would be unjust and inequitable not to enforce the agreement and notwithstanding its technical failings.

Can Parties to a De Facto Relationship Enter into a Similar Agreement? 

Australian law permits parties to a de facto relationship to enter into a BFA. 

Such an agreement can be made either prior to the commencement of the de facto relationship, during the de facto relationship, or after the termination of the de facto relationship. They are subject to the same style statutory regime that applies to BFAs for married persons. They are binding if, and only if, the statutory requirements under the Family Law Act are met unless a court finds it would be unjust and inequitable not to enforce the agreement and notwithstanding its technical failings. 

BFAs between de facto couples are also liable to challenge and to be set aside on similar grounds that apply to married persons, and again submissions based on grounds such as undue influence, unconscionable conduct, duress, fraud or misrepresentation may be raised. 

Is There an Obligation to Make Disclosure Prior to Entering into a BFA?  

Whilst there is no specific statutory or rule-based requirement that a party must give full and frank disclosure before a BFA is made, best practice of legal practitioners and the general attitude of the judiciary is to the effect that disclosure is an integral part of the making of any such agreement, and failure to give proper disclosure renders any BFA liable to challenge as either not binding or that it be set aside. 

For example, case law recognises that in order for legal practitioners to fulfil their obligations to give advice to a client about the nature and effect of the BFA and its advantages and disadvantages, they can only fulfil that legal duty if the lawyer is cognisant of the assets and liability position of each party. Absent that knowledge, it is difficult to see how a lawyer can provide advice, in the terms required by the Family Law Act, before their client enters into such a BFA. Further, it is difficult to see how a lawyer can provide a statement of independent legal advice to the client, if they do not have that information upon which their advice can be based. 

The absence of disclosure material also makes more common submissions that a BFA should later be set aside on the basis of misrepresentation or fraud.  

Will an Australian Court Recognise a Foreign Prenuptial or Postnuptial Agreement? 

The jurisdiction of an Australian court to make orders for property settlement and/or spouse maintenance will only be ousted by a BFA that meets the requirements under the Australian statute, being the Family Law Act. Australian courts will not regard their jurisdiction as being ousted, by the existence of a prenuptial agreement made in a foreign jurisdiction, notwithstanding that such an agreement may be perfectly valid and enforceable in that foreign country. 

The existence of a foreign prenuptial agreement, particularly one that contains a forum clause or choice of law clause in favour of that foreign jurisdiction, may however be a powerful reason why an Australian court might stay its proceedings, in favour of the foreign jurisdiction. 

Jurisdictional Requirements for the Making of BFAs 

Whilst there are no specific jurisdictional requirements that apply to BFAs made as between parties to a marriage or intended marriage, there are important jurisdictional requirements that apply to BFAs for parties to a de facto relationship. In overly simplistic terms, foreign persons who are cohabiting and not residing in Australia could not enter into or make a BFA that is valid and binding under Australian law, unless and until they are both parties who are present in and ordinarily resident in Australia.   

Can Parties to a Same-Sex Marriage or Same-Sex De Facto Relationship Make a Prenuptial Agreement or Postnuptial Agreement? 

Parties to same-sex relationships, whether of a married nature or of a de facto relationship, can enter into BFAs pursuant to Australian law. The same statutory regime applies to questions of whether such agreements are binding, and the same laws apply to the question of whether any such agreement should be set aside. 

Australian law grants recognition to de facto relationships, provided certain preconditions are met, including:

• geographical nexus;
• length of relationship; and
• the existence of a child or children of such a relationship.  

The law relating to parties to a de facto relationship, largely mirrors that applicable to married persons, save for these stringent jurisdictional requirements before proceedings can be instituted.  

Western Australia has its own laws that apply to de facto relationships. For the balance of Australians, their rights in respect of property settlement and/or spouse maintenance arising from the breakdown of the de facto relationship are based in Commonwealth law being the Family Law Act.   

Property Settlement Rights for De Facto Parties 

Parties to a de facto relationship, provided it is a qualifying relationship (see jurisdictional criteria above), are governed by legislative provisions that replicate those applicable to married persons.   

There is no greater award made in favour of a party to married relationship, as distinct to a de facto relationship, by mere virtue of the distinction between the two different style relationships. 

Spouse Maintenance Claims Arising From De Facto Relationships 

A party to a de facto relationship can bring a claim for de facto spouse maintenance upon the same terms that apply to married persons. There is no greater or lesser right for de facto parties than for married persons in that respect. 

Binding Financial Agreements and De Facto Relationships 

The court’s jurisdiction to make orders in relation to property settlement and/or spouse maintenance arising from a de facto relationship can be ousted in part or in whole if there is a BFA in place (see 2.5 Prenuptial and Postnuptial Agreements).  

Where an order for financial relief has been made pursuant to the Family Law Act, and a person fails to comply with its terms, a variety of mechanisms exist for its enforcement. The ability to successfully enforce is dependent in part on the clarity of the order made and it is obviously easier to enforce a mere monetary order than it is for a non-financial order. 

Examples of enforcement mechanisms available under the Family Law Act and Court Rules include the following.  

• A party may be in contempt of court, depending upon the nature of the breach, if that party fails to comply wilfully with the terms of an order.  
• A party may be liable to a contravention application if they fail to meet their obligations pursuant to a financial order. Punishments for a contravention range depending upon the nature and severity of the breach and the extent of its wilfulness. 
• Orders for enforcement can be sought against a defaulting party, including for the garnishment of wages, sale of assets, injunctions on the disposal of assets pending making good the breach, appointment of trustees for sale, appointment of administrators or liquidators to relevant entities, and for the winding-up of companies. 
• In circumstances where there is a risk of a party seeking to leave the Australian jurisdiction to avoid the payment of monies, a court may be willing to grant an injunction in the form of a departure prohibition order, preventing a party from leaving Australia until compliance. 
• Depending upon the nature of the breach, if there are other proceedings under the Family Law Act ongoing, the court may take the view that the party should not be entitled to prosecute those further proceedings unless and until they remedy the breach of an existing order.  
• A party who defaults on a financial order, causing the other party to bring enforcement proceedings, is likely to be subject to an order to pay the costs of the innocent party of those subsequent proceedings.  
• The Rules of Court provide for penalty interest to apply from the date of a default. 

Enforcement in Australia of Financial Orders Made in a Foreign Jurisdiction  

Australian law provides for the enforcement in Australia of some foreign orders where there are assets situated within the Australian jurisdiction. In overly simplistic terms, such enforcement is available to enforce a monetary as distinct from a non-monetary order. 

The question of whether a particular foreign order is capable of enforcement in Australia is very much a question that needs to be examined on a case-by-case basis, and depends upon:

• the identity of the country in which the order is made;
• the court that issued the order;
• the form of the order; and
• the nature of the order in question.

By way of a simplistic example, an Australian court would not recognise an order from a foreign courts that provided for sale of Australian real property, but may enforce an order of a relevant convention country which provided for payment of a monetary sum only. 

Whilst Australia has a system of open justice, it is an offence under Section 121 of the Family Law Act to publish or disseminate the name or identity of a party or witness to proceedings of any nature under the Family Law Act. That means that whilst a case of public interest might be reported by the media as to its general terms, it is a criminal offence for any media organisation (or any third party for that matter) to publish the actual names of the parties or witnesses involved in the case or to undertake any other reporting that would enable the identification of those persons. 

Decisions made by judges of the Federal Circuit Court and Family Court of Australia Division 1, the Federal Circuit and Family Court of Australia Division 2, and Family Court of Western Australia are regularly published by legal services and on the internet. However, the case names are anonymised, as are any other identifying features such as the names of most witnesses and the names of the businesses or suburbs/cities in which litigants may reside. 

Further Anonymisation of Proceedings 

In appropriate cases, an application can be made to an Australian Court in respect of proceedings for financial or parenting relief under the Family Law Act, to provide further confidentiality to the parties. Examples include the following. 

• An application can be made to remove the names of the parties from any published court list. 
• An application can be made to anonymise the names of the parties to the proceedings in any published court list.  
• In exceptional cases, an application can be made to “close” the court to any person who is not a member of the legal firm involved in the proceedings, a party to litigation or a witness involved in the case. Such an application generally needs to be made formally by written application together with a supporting affidavit explaining the need for further confidentiality or security, and will usually be determined by the relevant trial judge or judicial officer hearing the matter.  

Parties to Australian proceedings are required, before they start any case in the court, to make genuine steps to resolve the matter. There are a number of exceptions to that requirement for the taking of genuine steps, the primary being where there are issues of family violence that would prevent a party from safely participating in alternate dispute resolution such as mediation or negotiation. 

The Pre-action Procedures 

Except in cases of urgency, parties seeking financial relief in Australia must take genuine steps to try and resolve matters outside of the court system before instituting proceedings under the Family Law Act for property settlement and/or spouse maintenance. This requires, in general terms, that parties to a marriage or de facto relationship:  

• exchange financial disclosure materials;  
• make proposals for settlement;  
• participate in alternate dispute resolution; and 
• give prior notice of the intention to start a case, including identifying the matters in dispute and the orders that will be sought if proceedings need to be commenced under the Family Law Act. 

Enforceability of Settlements 

Australian law provides for a limited number of ways in which parties can make an enforceable agreement between them.  

The first of those is the making of a BFA in accordance with the provisions of the Family Law Act, whether that agreement is made prior to marriage or a de facto relationship, during a marriage or de facto relationship, or after the breakdown of the marriage and divorce or end of the de facto relationship. 

The second is the making of an order, whether by consent or by court determination, pursuant to the Family Law Act. 

Informal agreements between parties, even if on an open basis and in writing, are not of themselves capable of enforcement such as to bring to an end litigation. Courts are protective of their jurisdiction and the parliament by Australian law limits the ways in which parties can bring an end to their legal rights.   

A BFA can only be made where the parties have had independent legal advice. An order for financial relief under the Family Law Act, even where made by consent, will only be made by the court where it considers the terms of the order are proper or just and equitable. The intention is to stop parties from being subject to terms of settlement negotiated by a former partner or spouse who is in a stronger bargaining position due to circumstances such as family violence. 

There may, however, in appropriate cases, be a submission available that a party should not be able to bring a claim for financial relief and that they are estopped from doing so, by virtue of the informal agreement made, dependent upon the circumstances in which that agreement was made and the reliance upon it by the other party.  

The commencement of proceedings in Australia under the Family Law Act for orders in relation to a child involve different jurisdictional considerations to those that apply to the commencement of financial proceedings. 

Jurisdictional Requirements to Commence Parenting Proceedings in Australia

Proceedings may be instituted under the Family Law Act in Australia in relation to a child only if one or more of the following conditions is met:

• a child is present in Australia on the date the application instituting proceeding is filed in a court;
• the child is an Australian citizen, or is ordinarily resident in Australia, on the date the application commencing the proceedings is filed in a court; 
• a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the date the application instituting proceedings is filed in a court; 
• a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
• it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the Australian court to exercise jurisdiction in the proceedings.

The bases upon which jurisdiction can be established in Australia in relation to parenting proceedings are extremely broad. Circumstances can arise, however, where both the courts in Australia and a foreign country each have jurisdiction in relation to the parenting relief sought. In those circumstances, an application can be brought seeking a permanent stay of the Australian parenting proceedings on forum grounds. In determining whether or not to stay the Australian proceedings, the court is guided not by the “clearly inappropriate” test (being that which applies in relation to financial relief), but rather by consideration of what is in the best interests of the child. In the general run of matters, the presence of the child or children in Australia for any reasonable period of time (leaving aside cases where there are Hague Convention Applications on foot) will lead to the determination that is in the best interests of the child that the proceedings be determined by the Australian court. 

The Family Law Act governs questions of parenting arrangements in relation to children born both of a marriage and outside of marriage. That legislation also applies in relation to parenting disputes between same-sex couples and in circumstances where a child may have been born as a consequence of surrogacy arrangements.

Genuine Steps Requirement Before Starting Parenting Proceedings

Unless an exemption applies, for example because there is an urgency or where there are risks of family violence, child abuse or safety considerations, a party cannot start a parenting case in the Australian court without first:

• complying with pre-action procedures mandated by Court Rules;
• attempting to resolve a parenting dispute using family dispute resolution; and
• taking genuine steps to attempt to resolve the issues in dispute about the child.

Decisions about children are governed by the paramount consideration of what is in the best interests of the child. Both during negotiations or during court proceedings about children, parties and lawyers are guided by matters including:

• the need to protect and safeguard the interests of the child; 
• the importance of a continuing safe relationship between the child and both parents and the benefits the child gains from the parents co-operating with one another; 
• the potential damage to a child involved in a dispute, particularly if a child is encouraged to take sides or take part in any dispute between the parents; 
• the importance of identifying issues early and exploring options for settlement; and
• their duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute.

Legal representatives have obligations under the Family Law Act, the Court Rules and the Courts Central Practice Direction to assist clients in parenting matters, and must as early as practicable take steps including:

• advising clients of ways of resolving disputes without starting legal action; 
• advising clients of the obligations and requirements imposed about family dispute resolution where it is safe to participate in that process; 
• advising clients of their duty to make full and frank disclosure and the possible consequences of breaching that duty; 
• endeavouring to reach an agreement rather than starting or continue legal action, provided that it is in the best interests of the client and any child; 
• encouraging clients to engage meaningfully in dispute resolution; and
• actively discouraging clients from making ambit claims. 

Approach to Parenting Proceedings in Australia

There is no presumption or starting point, under Australian law, in relation to the living arrangements for children.

Decisions about parental responsibility, where a child lives, and the time the child spends with the other parent or interested persons, are governed by the paramount consideration of what is in the best interests of a child. The Family Law Act sets out a series of factors that the court takes into account in reaching that decision. Significant importance is placed by the court in ensuring that children are kept safe from harm and protected from the risk of abuse, family violence or neglect. The Australian courts have the power, both at the Commonwealth level through the grant of injunctions for personal protection, and at a state and territory level by the making of protective orders (commonly known as Apprehended Domestic Violence Orders) to protect both children and a parent.

Absent a court order to the contrary, each of the parents of a child have parental responsibility for making decisions in relation to the care, welfare and development of that child. If the court determines that the best interests so dictate, an order can be made which gives to one parent sole parental responsibility about some or all of those aspects of the child’s long-term interests such as education, health or religious upbringing. 

Overview of Parenting Proceedings in Australia

If court determination is necessary, whether on an interlocutory or final basis about parenting arrangements, applications are generally heard by the Federal Circuit and Family Court of Australia Division 1, the Federal Circuit and Family Court of Australia Division 2, or in the Family Court of Western Australia (the latter having its own state-based system).

The legislation requires, where it is safe to do so, that parties first participate together in “family dispute resolution” services to try to reach an agreement about what is in the best interests of their children. If the parties participate and agreement cannot be reached, then a certificate is issued entitling the commencement of proceedings under the Family Law Act in relation to the child.

Australia has a court system that offers specialised services in cases involving complex parenting issues or significant risk issues, including the Lighthouse Project and the Majellan List. Australian courts can also appoint an independent children’s lawyer to represent the interest of children in contested parenting proceedings where the matter is of a significantly complex nature such that the court would be assisted by involvement of an independent representative rather than simply the parties or lawyers for the parties appearing in the hearing. 

Before any final trial in relation to parenting matters, the court usually requires that a report be prepared for the court by a suitably qualified expert, whether being a psychologist, psychiatrist and/or medical expert depending upon the needs of the particular child and/or family under consideration.

Child Support

Child support in Australia is primarily governed by the Child Support (Assessment) Act being federal legislation. There is an administrative governmental body, Services Australia (Child Support Division) that oversees and administers questions of liability for child support and determination of quantum in the first instance. 

There are a series of administrative review and appeal processes that can follow from a decision by Services Australia on child support matters, and in some circumstances the question of child support can be determined by the Federal Circuit and Family Court of Australia if there are concurrent proceedings in respect of other financial relief before the court and it would be just and equitable for the court to hear and determine both the financial relief and child support matters simultaneously. 

How is Child Support Calculated?

Child support is initially determined by a formula that takes into account a series of factors including the number and age of children, whether a parent has the responsibility to support any other children, the respective taxable income of each parent, and the number of nights of care each parent has for the child or children. Services Australia issues an administrative assessment of child support based upon the application of that formula to the circumstances of the particular case.

The application of the formula can however result in outcomes that do not reflect the needs of the children or the capacity of the particular parent to make payments. The formula is essentially geared to relatively standard circumstances, and it is largely unsuitable for cases involving high net worth individuals, children who attend private schools, and/or where the children have additional needs that cannot be met from the usual application of the formula. Applications can be made for a departure from the formula, in the special circumstances of a case, on a series of grounds including the educational needs of children, the income of each parent, and where children have special needs.

How Can Parties Agree Child Support Arrangements Outside of the Court System?

There are a variety of methods by which parents reach agreement about child support. 

Many parents do not go through the child support system conducted by Services Australia, instead reaching an informal (non-binding) agreement between themselves as to what level of periodic and/or non-periodic child support will be paid. For example, one parent may agree to meet private school fees, or they might agree to share health insurance costs and school fees between them. If that agreement later breaks down, then they can enter the child support administrative assessment system.

Parents wishing to formalise a child support arrangement can do so by a series of mechanisms, as set out below. 

• Making a Limited Child Support Agreement, ostensibly enforceable for a period of three years, which is registered with Services Australia.
• Making a Binding Child Support Agreement, which operates unless and until it is terminated by agreement or set aside by a court, and which generally operates until a child turns 18 or if they finish secondary education in the year they turn 18 then at the end of such year.
• Where there are child support matters before a court, having an order made by consent by the Federal Circuit and Family Court of Australia for a departure from the administrative provisions under the Child Support (Assessment) Act.

Adult Child Maintenance

Parents have an ongoing obligation to support their children even after they turn 18, in certain specified situations. In general terms this often involves circumstances where a child:

• is undertaking a full-time tertiary education course for a first degree or qualification; or
• where the child has a physical or mental incapacity.

Applications for what is often termed “adult child maintenance” can be brought before a court pursuant to the Family Law Act by either the other parent or by the child themselves. Such proceedings are relatively rare, because most parents and their “adult” children usually reach an agreement about the level of support. The case law suggests that courts are not inclined to make substantial monetary awards in relation to adult child maintenance, as “adult” children have an obligation to try and support themselves through paid employment if that can feasibly be undertaken.

Parenting Responsibility Under the Family Law Act

Each of the parents of a child has parental responsibility for the making of decisions in relation to the care, welfare and development of that child. 

Where parties are separated, they are encouraged to try and reach agreement, whether directly or through family dispute resolution, about issues that might arise in relation to the long-term care of a child such as education, medical treatment or religious upbringing. If parties cannot reach agreement about those matters, then courts exercising jurisdiction of the Family Law Act can make orders allocating parental responsibility in whole or in part to one of the parents or to another person who has an interest in the welfare of the child.

Determination of what is in a child’s best interests is undertaken on a case-by-case basis, and is governed by the paramount consideration of what is in the child’s best interests. If the case requires expert evidence, then the court will ordinarily appoint an expert in the relevant field to provide a written report to the court giving consideration to the matter and making a recommendation where appropriate. Recommendations by an expert may be persuasive, but they are not determinative, of the outcome. They simply constitute evidence which if relevant is to be taken into account by the court in reaching its conclusion as to what is in the best interests of the child.

The Concept of Parental Alienation and the Australian Courts

The term “parental alienation” is one often raised by parties, but is not a phrase endorsed by the courts nor reflected in the Australian legislation. 

The Family Law Act requires consideration, on a case-by-case basis, of what is in the best interests of the child, and the focus of the court is on the conduct and behaviour of the parties and the parties’ children, rather than on imposing simplistic labels on behaviour. The intention is to avoid the imposition of labels, such as “parental alienation”, which may be suggestive of an outcome. 

Courts are at times faced with a circumstance where a child rejects one parent and there are series of considerations under the Family Law Act to analyse the circumstances giving rise to the situation, and tools can be deployed to try and readdress matters including through family therapy. 

Australian courts are alive to the potential misuse by some parents ‒ who deploy the term “parental alienation” ‒ as a step in coercive control. By way of example, studies have shown that parents who act protectively in the best interests of their children by limiting the contact that child or children have with a perpetrator of family violence, are often accused by that other parent of engaging in “parental alienation” (finding of the Queensland Women’s Safety and Justice Taskforce). 

Wishes of Children

Children do not give direct evidence in Australian court proceedings. Questions of the wishes of children, or what they say about particular incidents, are placed before the court through a variety of other means. These include:

• submissions made by an independent children’s lawyer in appropriate cases; 
• statements the children make and wishes they express to a parent or other witness in the proceedings; and 
• statements the children express to an expert who is providing a report to the court.

It is often the case that the independent children’s lawyer will interview children, so they can actively canvas (where appropriate) the wishes of the children. It is also permissible for judges to interview children in chambers, however this only occurs in extraordinarily rare cases as it is a process often fraught with difficulty and counter-productive. Where an independent children’s lawyer has been appointed, then courts often ask the independent children’s lawyer to explain to the children the final decision made by the court.

Parties to Australian parenting proceedings are required, before they start any case in the court, to make genuine steps to resolve the matter. There are however a number of exceptions, the primary being where there are issues of family violence that would prevent a party from safely participating in alternate dispute resolution. 

The Pre-action Procedures 

Except in cases of urgency, parties seeking parenting relief in Australia must take genuine steps to try and resolve matters outside of the court system before instituting proceedings under the Family Law Act for parenting matters. This requires, in general terms, that parties: 

• exchange disclosure materials;  
• make proposals for settlement;  
• participate in alternate dispute resolution; and 
• give prior notice of the intention to start a case, including identifying the matters in dispute and the orders that will be sought if proceedings need to be commenced under the Family Law Act. 

Enforceability of Settlement 

Australian law only recognises a limited number of ways in which parties can make an enforceable agreement between them. Informal agreements between parties, even if on an open basis and in writing, are not of themselves capable of enforcement such as to bring to an end litigation.  

Parties can make a parenting plan, which is signed and dated, about some/all of parenting matters. There is no requirement that each party first take legal advice. Whilst not an enforceable agreement, the terms of a parenting plan will be taken into account by a court in subsequent proceedings. 

To make an enforceable agreement, parties need to record its terms in an order which is submitted to the court for consideration. The parties do not need legal advice, but must sign a document acknowledging their right to obtain prior independent legal advice. The parties must also file with the court, a notice identifying any issues of risk, abuse or neglect, and how the proposed order addresses those matters.  

Under Australian law it is an offence to publish or disseminate information that identifies the parties to a proceeding or the identity of children the subject of proceedings. Whilst Australia has an open court system, and media and members of the general public can sit in court during the conduct of parenting proceedings, they cannot then publish or disseminate information in breach of those obligations. By way of example, the Australian media can report the general facts of the case and the ultimate decision, provided that the reporting does not breach any of the identification conditions imposed by Section 121 of the Family Law Act. 

Decisions made by judges of the Federal Circuit Court and Family Court of Australia Division 1, and the Federal Circuit and Family Court of Australia Division 2, and Family Court of Western Australia, are regularly published by legal services and on the internet. However, the case names are anonymised, as are any other identifying features such as the names of most witnesses and the names of the businesses or even cities in which litigants may reside. 

Further Anonymisation of Proceedings 

In appropriate cases, an application can be made to an Australian court in respect of proceedings for financial or parenting relief under the Family Law Act, to provide further confidentiality to the parties. Examples include the following applications. 

• An application can be made to remove the names of the parties from any published court list.
• An application can be made to anonymise the names of the parties to the proceedings in any published court list.
• In exceptional cases, an application can be made to “close” the court to any person who is not a member of the legal firm involved in the proceedings, a party to litigation or a witness involved in the case. Such an application generally needs to be made formally by written application together with supporting affidavit explaining the need for further confidentiality or security, and will usually be determined by the relevant trial judge or judicial officer hearing the matter.