Is there such a thing as an ‘instant divorce’?

It was recently reported in the Sydney Morning Herald (here) that there is rising controversy in India over the use of the ‘triple talaq’ by Muslim men to divorce their wives.  The ‘triple talaq’, reported as the practice of Muslim men saying the word ‘talaq’ three times which provides for an ‘automatic divorce’ has been criticised by many as being easily abused – allowing for men to divorce their wives for potentially superficial reasons.  While it has been reported that several Muslim countries have banned the practice, there is mounting concern among Muslim women in India that their husbands are too easily able to end their marriage. A government committee is reported to have recommended that the practice be banned, but confusion as to whether or not the practice is a component of Islamic law, amongst other things, has complicated matters.

While the status of the ‘triple talaq’ in Islamic law is unlikely to be easily resolved, it does generate an interesting question: how does the law on divorce operate in NSW and in fact, the whole of Australia?  At Szabo & Associates Solicitors we are experts on the law on Divorce and attempt to provide an answer to this important question.

Can I get an ‘instance divorce’ in NSW?

It should be noted at the outset that, under NSW law, there is no such thing as an ‘instance divorce’.  The law has been developed in such a way that it will only allow couples to divorce where they have reached a certain point in their marriage where the relationship is no longer sustainable i.e. there are particularly grave reasons why you can no longer live as husband and wife.  

Under the Family Law Act, the single basis for a couple to be able to pursue a divorce from one another is where they are able to prove that the marriage has ‘irretrievably broken down’. 

How will a marriage have ‘irretrievably broken down’?

In contrast to what has been reported on the ‘triple talaq’, which appears to allow for divorce on what some may deem to be very light and ambiguous grounds, the definition of a marriage that has ‘irretrievably broken down’ is very clear.  In order for you to divorce your spouse the Family Law Act requires that:

1. You and your partner have been married for two years;
2. You have lived separately and apart from your spouse for at least 12 months; and
3. The marriage has deteriorated to such an extent that there is no likelihood that you and your spouse will be able to get back together. 

Furthermore the law also imposes a time threshold that you and your spouse must meet before you can apply for a divorce: you must have been married for two years to be able to approach the courts directly for a divorce.

The situation is slightly different for couples who have been married for less than two years.  They will be obliged to attend a series of sessions with a marriage counsellor, in order to establish the possibility (or lack thereof) of avoiding the need for a divorce.  It is only if a couple are unable to save their relationship through counselling, that they will be permitted to ask the courts for a divorce.    

When is there evidence that a marriage has ‘irretrievably broken down’?

The evidential requirements for a divorce are quite clear.  Before a court will grant an application for a divorce, it must be persuaded that the marriage between you and your spouse has been terminated from a fixed point in time.  This in turn requires tangible evidence that you and your spouse have lived differently from that point in time, than you otherwise would have lived.  A common example of this is where either you or your spouse leaves the marital home.   

Can I still live in the marital home, and apply for a divorce?

It is not uncommon that a couple continue to live in the same property, albeit in the hope to divorce from one another.  This is not a bar to an application for a divorce.  However in this situation the courts will need to be provided that a couple do live largely distinct lives from one another.  There are a variety of different examples of this, including:

• A couple having different groups of friends;
• A couple not having any joint involvement in chores at home; and
• A couple sleeping in separate beds.

Is the process for getting a divorce quick?

As mentioned earlier, there is no ‘instance divorce’ in NSW either in terms of substantive law or the procedures involved.  If you believe that you are able to meet the evidential requirements, you will then need to lodge your application for divorce with the courts. This will then allow for the generation of a hearing date where the court will consider the application, and whether or not all of the statutory requirements have been met. 

It should also be noted that a court will not only confine itself to investigating the evidential requirements that you and your spouse must meet.  It will also make enquiries, where children are involved, what arrangements have been made for their care.  It is important to be aware that the courts will be particularly concerned that the interests of any children have been taken into account by their parents, and that the parent-child relationship will be maintained following the granting of an application for a divorce. 

The process of applying for a divorce is precisely that, a process.  It is possible that several weeks may pass between the lodging of an application, to the generation of a hearing date etc.  This is why it is incredibly important that you and your spouse are convinced of the need for a divorce, and are prepared to adhere to the process involved in order to secure one. 

Speak to specialists in the field

At Szabo & Associates Solicitors we understand that the decision to divorce from your spouse is unlikely to be one taken lightly.  Our team of experienced lawyers are regularly sought out for our distinctive approach in handling what is often a very delicate matter: we will handle every aspect of the divorce action, including representing you before the courts; we will also provide you with clear, bespoke legal advice that meets your needs.  Our team take pride in offering a service that is both friendly and effective.  If you have questions about how you can pursue a divorce, contact our team now.